SZMOS v Minister for Immigration
[2008] FMCA 1364
•29 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1364 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.65, 422B, 425, 425A, 426A, 441A Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicants: | SZMOS & SZMOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Numbers: | SYG 1978 of 2008 SYG 1980 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 29 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2008 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
In each case, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1978 of 2008
| SZMOS & SZMOT |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me two show cause applications to review two decisions of the Refugee Review Tribunal (“the Tribunal”). Both decisions were handed down on 1 July 2008. In each case, the Tribunal affirmed a decision of a delegate of the Minister not to grant each applicant a protection visa. The applicants are from Indonesia. They are a brother and sister. On 21 August 2008, I ordered that the two applications be heard concurrently. For all relevant purposes, the two Tribunal decisions are the same.
Background facts relating to these matters are set out in submissions filed on behalf of the Minister on 23 September 2008. I adopt as background for the purposes of this judgment, with necessary amendments, paragraph 2 through to paragraph 10 of those written submissions:
The written claims of the applicants were contained in a one page statement attached to their application for a protection visa (“PVA”): court book (“CB”) 26. The applicants claimed to fear persecution in Indonesia on the basis of their Chinese ethnicity. The male applicant claimed that his ethnic group was targeted by native Indonesians. His home and business had been looted and “burnt to ashes”. He claimed that Indonesia was politically unstable and riots and demonstrations were occurring across the country. The female applicant claimed that her small business had been robbed on a number of occasions.
In decisions dated 12 February 2007, a delegate of the Minister refused to grant the applicants protection visas: CB 29-34. The delegate essentially found that on the evidence before her, she could not be satisfied that the applicants would face hardship amounting to persecution in Indonesia: CB 33.8.
On 12 March 2008, the applicants filed applications with the Tribunal for review of the delegate’s decision: CB 35-38.
By a letter dated 28 March 2008, the Tribunal invited the female applicant to attend a hearing on 6 May 2008 to give oral evidence and present arguments in support of her case: CB 42-43 (SZMOT).
By a letter dated 28 March 2008, the Tribunal invited the male applicant to attend a hearing on 7 May 2008 to give oral evidence and present arguments in support of his case: CB 41-42 (SZMOS).
The Tribunal letters inviting the applicants to attend the hearing did the following:
(a)Contained an invitation to each applicant to appear before it to give evidence (s.425).
(b)Provided notice of the specified day, time and place of the hearing.
(c)Was given to the applicants by one of the means specified in s.441A of the Migration Act 1958 (Cth) (“the Migration Act”) (namely, registered prepaid post).[1]
(d)Provided a period of time to the applicants, which was at least the prescribed period of 14 days: regulation 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”).
(e)Contained a statement giving effect to s.426A (regarding the options available to the Tribunal if the applicants failed to appear before it).
Accordingly, the invitation complied with the statutory requirements contained in ss.425(1) and 425A of the Migration Act and regulation 4.35D of the Regulations.
The Tribunal did not receive a reply to the letters of 28 March 2008 and critically the applicants did not subsequently attend the hearings: CB 43, 51.7 (SZMOS); CB 44, 52.8 (SZMOT).
If an applicant does not appear before the Tribunal after having been given a valid invitation under s.425, the Tribunal may make a decision on the review without taking further action to allow or enable the applicant to appear before the Tribunal: s.426A of the Migration Act. The Tribunal was not required to make further enquiries[2] and had no duty to investigate the applicants’ claims.[3] The Tribunal was not obliged to accept the applicants’ claims at face value and by choosing not to attend the hearing, the applicants are to be taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of their documents would be noted by the Tribunal without them having an opportunity to expand upon or clarify them.[4]
The Tribunal noted that the applicants had “provided so little information about the circumstances [they] might face” should they return to Indonesia that it was unable to establish the relevant facts: CB 52.5 (SZMOS); 53.6 (SZMOT). On the basis of the limited evidence before it, the Tribunal was unable to be satisfied that the applicants had a well-founded fear of Convention-related persecution in Indonesia: CB 52.7 (SZMOS); CB 53.8 (SZMOT).
[1] Affidavit of Nicola Johnson sworn 21 August 2008, annexure “A”
[2] Minister for Immigration v SGLB (2004) 207 ALR 12 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33], [43], per Callinan J at [124], Kirby J contra at [74]
[3] NAYU v Minister for Immigration [2004] FCA 528 at [18]-[21] per Jacobson J
[4] S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [25]
The proceedings began with show cause applications filed on 31 July 2008. The female applicant, SZMOT, asserts that the Tribunal failed to give natural justice, that its decision is illogical and biased and that there was no evidence or other material to justify the making of the decision. The male applicant, SZMOS, asserts that the Tribunal failed to consider the whole of his case, that it was not reasonable for the Tribunal to make a finding just because he did not provide details of his experience when he was in Indonesia and the Tribunal made a finding which is biased.
Each application is supported by a short affidavit filed with it. In each case, I received the first paragraph of the affidavit as a submission and the balance as evidence. I also received in each case the court book filed on 19 August 2008 and an affidavit by Nicola Johnson made on 21 August 2008 and filed the following day.
There is no substance in each case to the grounds of review advanced. In the case of applicant SZMOT, I agree with and adopt, with minor amendments, for the purposes of this judgment paragraphs11 through to 17 of the Minister's written submissions:
The applicant filed an application for Constitutional writ relief in the Federal Magistrates Court on 31 July 2008. No amended application or any further evidence was filed in support of the application despite orders made on 21 August 2008 permitting the applicant to do so by 18 September 2008.
The application contained three grounds of review in the following terms:
1.The Refugee Review Tribunal failed to give natural justice.
2.The decision made by the Refugee Review Tribunal is illogical and biased.
3.There is no evidence or other materials to justify the making of the decision.
The first ground alleges a denial of natural justice but fails to provide particulars to give this ground meaning. In any event, as this is a case to which s.422B of the Migration Act applies, the Tribunal was not required to apply the common law fair hearing rule.[5] The applicant was entitled only to the rights afforded to them under Part 7 of the Migration Act and the Tribunal’s compliance with the various requirements of Part 7 Division 4 of the Migration Act, particularly ss.425(1) and 425A, means that the applicant was accorded procedural fairness.
The second ground alleges that the Tribunal’s decision was illogical. Again, no particulars are provided. The decision of the Tribunal in this case is not one with which the applicant agrees. Nonetheless, it is one which was both logical and reasonable when viewed in light of the whole of the evidence before it. The basis for the Tribunal’s decision was the Tribunal’s inability to be satisfied in accordance with s.65 of the Migration Act that the applicant met the requisite criteria for the grant of a protection visa under s.36 of the Migration Act. This was so because the applicant had provided insufficient information and detail in support of her claims. It was for the applicant to make out her case to the Tribunal,[6] but she failed to do so.
In any event, there is no basis for a claim that there is some legal error which may be established by reason of irrationality or illogicality in the Tribunal’s reasoning.[7] Six differently constituted benches of the Full Court of the Federal Court had ruled that ‘want of logic’ does not constitute an error of law.[8]
The second ground also alleges bias. There is simply no evidence before the Court to make out this serious allegation which must be distinctly made and clearly proven.[9]
The third ground alleges that there was no evidence or other material to justify the decision. This ground is misconceived. The task of the Minister, through his delegate, and the Tribunal on appeal, pursuant to s.65 of the Migration Act, is to consider whether they are satisfied that the requirements for the grant of a visa have been met. It will be difficult for the Tribunal to achieve the requisite degree of satisfaction if the applicant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected.[10] The Tribunal’s rejection of the application was the “inevitable consequence”[11] of the applicant’s non-attendance at the hearing.
[5] Minister for Immigration v Lay Lat (2006) 151 FCR 214 [2006] FCAFC 61 and SZCIJ v Minister for Immigration [2006] FCAFC 62
[6] Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ.
[7] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ
[8] see NACB v Minister for Immigration [2003] FCAFC 235 at [30]; W404/01A v Minister for Immigration [2003] FCAFC 255 at [35]; NATC v Minister for Immigration [2004] FCAFC 52 at [25]; VWST v Minister for Immigration [2004] FCAFC 286 at [16] – [18]; WAJW v Minister for Immigration [2004] FCAFC 330 at [31] – [32] and WAJQ v Minister for Immigration [2005] FCAFC 79 at [22]
[9] Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72].
[10] NAST v Minister for Immigration [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ); NAVX v Minister for Immigration [2004] FCAFC 287 (French, Emmett and Dowsett JJ); Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ).
[11] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
In the case of applicant SZMOS, I agree with and adopt for the purposes of this judgment paragraphs 11 through to 16 of the Minister's written submissions:
The applicant filed an application for Constitutional writ relief in the Federal Magistrates Court on 31 July 2008. No amended application or any further evidence was filed in support of the application despite orders made on 21 August 2008 permitting the applicant to do so by 18 September 2008.
The application contained three grounds of review in the following terms:
1.The Tribunal failed to consider the whole of my case.
2.It is not reasonable for the Tribunal to make the finding that just because I did not provide details of my experience when I was in Indonesia.
3.The Tribunal made the finding which is biased.(sic)
The first ground fails to provide particulars to explain what the Tribunal is said to have failed to consider. The Tribunal clearly considered the claims made by the applicant to the Department: CB 51.3. That was the only information that the applicant had provided to either the Department or the Tribunal. Having considered those claims, the Tribunal could not be satisfied that the applicant had suffered discrimination or that his property was destroyed or that he was paid below the normal minimum wage paid to local Indonesians. The Tribunal could also not be satisfied that the applicant would be persecuted for reasons of his race or nationality, or any other Convention reason, if he returned to Indonesia in the reasonably foreseeable future: CB 52.5. There is no support for the contention that the Tribunal did not consider the whole of the applicant’s case.
To the extent that the second ground alleges that the Tribunal decision was unreasonable, an “unreasonable” decision is one for which no logical basis can be discerned and the bar to a finding of unreasonableness is exceedingly high.[12] The Tribunal’s findings were based on the limited evidence before it. The decision of the Tribunal in this case is not one with which the applicant agrees. Nonetheless, it is one which was both logical and reasonable when viewed in light of the whole of the evidence before it. The basis for the Tribunal’s decision was the Tribunal’s inability to be satisfied in accordance with s.65 of the Migration Act that the applicant met the requisite criteria for the grant of a protection visa under s.36 of the Migration Act. This was so because the applicant had provided insufficient information and detail in support of his claims. It was for the applicant to make out his case to the Tribunal,[13] but he failed to do so. There is no unreasonableness – in the sense of any want of logicality – in the Tribunal’s reasoning in this regard.[14]
The third ground alleges bias. There is simply no evidence before the Court to make out this serious allegation which must be distinctly made and clearly proven.[15]
The task of the Minister, through his delegate, and the Tribunal on appeal, pursuant to s.65 of the Migration Act, is to consider whether they are satisfied that the requirements for the grant of a visa have been met. It will be difficult for the Tribunal to achieve the requisite degree of satisfaction if the applicant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected.[16] The Tribunal’s rejection of the application was the “inevitable consequence”[17] of the applicant’s non-attendance at the hearing.
[12]Gamaethige v Minister for Immigration [2001] FCA 565 (21 May 2001; Minister for Immigrationv Eshetu (1999) 162 ALR 577 at par 101; Attorney General (NSW) v Quin (1990) 170 CLR 1 at [36].
[13] Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ.
[14] Minister for Immigrationv Eshetu (1999) 197 CLR 611 at [101].
[15] Minister for Immigrationv Jia (2001) 205 CLR 507 at [35] and [72].
[16] NAST v Minister for Immigration [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ); NAVX v Minister for Immigration [2004] FCAFC 287 (French, Emmett and Dowsett JJ); Minister for Immigrationv VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ).
[17] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
In each case, the applicants were notified that the Tribunal was unable to make a favourable decision in their case and were invited to a hearing. Neither applicant attended the hearing to which they were invited. Nothing further was provided and, in each case, the Tribunal was left in the position of having insufficient material upon which it could make a decision favourable to the applicants.
I am satisfied in each case from the material in the court book and the affidavits by Ms Johnson as to despatch of the hearing invitations that the Tribunal met its obligations under s.425 of the Migration Act.
No arguable case of jurisdictional error is apparent to me in either case.
The female applicant, SZMOT, told me from the bar table that she and her brother were unable to attend the Tribunal hearing because at the time he was bedridden with typhoid fever. I understood from what she told me that this is an ailment which comes and goes periodically. If the male applicant, SZMOS, is in fact, a carrier of typhoid fever, that is a very serious matter and he should undergo a health assessment. That is a matter which the Minister's Department ought to consider without delay.
Applicant SZMOT also told me from the bar table that, although her brother was unwell at the time of the Tribunal hearing, no information concerning his illness was given to the Tribunal. Accordingly, the Tribunal was not on notice that there was any problem that might have required an adjournment of the hearing to which the applicants were invited.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applications having been dismissed, costs should follow the event. The Minister sought an order for costs fixed in the amount of $2,300 in each matter. Scale costs in this instance would be $2,500. However, savings have been achieved by the two matters being heard concurrently. I will order that in each case, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 October 2008
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