SZMVO v Minister for Immigration
[2008] FMCA 1668
•11 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1668 |
| 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, 425, 425A, 426A, 441A |
| Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 NAST v Minister for Immigration [2004] FCAFC 208 NAVX v Minister for Immigration [2004] FCAFC 287 S58 of 2003 v Minister for Immigration [2004] FCAFC 283 VCAK of 2002 v Minister for Immigration [2004] FCA 459 |
| Applicant: | SZMVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2659 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr P Snell Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2659 of 2008
| SZMVO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was apparently handed down on 11 September 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Indonesia and had made claims of political persecution. Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 2 December 2008. I adopt as background paragraphs 2.1 to 2.6 of those written submissions:
The applicant, a citizen of Indonesia, claimed to fear harm from the police and government because of her support for the former President Suharto. She claimed that she had received warnings from the police and, after she attended a demonstration in support of Suharto in March 2006, she was required to attend a police station where she was questioned and advised by the police that they had evidence against her: court book (“CB”) at 27.
On 8 May 2008 a delegate of the Minister refused the applicant’s protection visa application because the delegate was not satisfied on the basis of independent country information that the applicant would face persecution at the hands of anti-Suharto elements or the police in Indonesia, and there was no evidence that the Indonesian government would target her for being pro-Suharto. Additionally, the delegate found that if the applicant was subject to politically motivated criminal behaviour, she would have redress through the legal system and human rights organisations: CB 41.
On 11 June 2008 the applicant lodged an application for review of the decision of the delegate: CB 46-49. On 25 June 2008 the Tribunal wrote to the applicant at the address provided in the application for review, validly inviting her to attend a hearing before the Tribunal to give oral evidence and present argument in support of her claims. The applicant failed to respond to the hearing invitation (CB 54) and did not attend the scheduled hearing on 14 August 2008: CB 55-56. The Tribunal proceeded to determine the matter pursuant to s.426A in the absence of the applicant and without taking any further action to allow the applicant to appear before it: CB 61.
In its decision dated 19 August 2008 (CB 60-65) the Tribunal found the applicant’s claims to consist of only a “brief narrative” and to be lacking in details as to the form of her alleged support for the former president Suharto, other than participation at a single demonstration in March 2006. The Tribunal observed that the applicant claimed to have been “warned” by police, however it was not satisfied that this amounted to serious harm. Additionally, the Tribunal found on the documentation provided by the applicant that she had resided at the same address, conducted a business and had travelled internationally during the period that the alleged events of persecution occurred. The Tribunal considered the applicant’s apparent ability to live a normal life over many years to indicate that she had not been subject to persecution because of her political beliefs. The Tribunal further observed that the applicant had not claimed to have been involved in political activity or to have come to the adverse attention of the police in the 18 months prior to her departure from Indonesia: CB 64.
On the basis of the limited information provided by the applicant and without the opportunity to obtain further information from her at a hearing, the Tribunal was unable to be satisfied of the applicant’s claims: CB 65.
The Tribunal further observed that even if the applicant had been warned on one occasion by police, it could not be satisfied that this constituted serious harm amounting to persecution. The Tribunal could therefore not be satisfied that the applicant had a well-founded fear of persecution in Indonesia by reason of her political opinion, or for any other Convention reason: CB65.
The applicant relies upon her show cause application filed on 15 October 2008. In that application she asserts a failure of natural justice and a failure to consider the current situation in Indonesia and an absence of evidence to justify the Tribunal decision. The application is supported by a short affidavit which I received as a submission. I also have before me as evidence the court book filed on 11 November 2008 and an affidavit by Peter Snell made on 27 October 2008 dealing with dispatch of a hearing invitation to the applicant by the Tribunal.
Yesterday, my associate received an email from the solicitor appointed to provide panel advice to the applicant identifying a language issue. The email relevantly states:
In accordance with the Applicant's instructions to the Court and the Respondent, we arranged for an interpreter in the Bahasa Indonesia language to attend our office today.
However, it soon became apparent that Bahasa Indonesia is not the Applicant's native language.
The Applicant appears to have some familiarity with Bahasa Indonesia and Mandarin. However, to the best of my ability to ascertain it appears that the Applicant's native language is Teochew, which I understand is a dialect related to Mandarin and which is commonly spoken in the Applicant's home area. …
According to Wikipedia, this dialect is spoken by some 7.8 million people in Indonesia. However, I note that the Indonesian interpreter who attended my office today had never heard of it!
It is my opinion that the Applicant's ability in Bahasa Indonesia is unlikely to be sufficient for the hearing before Driver FM.
The applicant completed an information sheet at the time she first attended this Court at which time she had requested an Indonesian interpreter. She also identified Indonesian as the language from which she would require interpretation in her application to the Court. Nevertheless, in view of the email from the applicant's panel adviser, I arranged for an interpreter to attend Court today who is fluent in both Bahasa Indonesia and in Teochew. When the Applicant arrived at Court I enquired of her whether she would prefer to speak in Bahasa Indonesia or Teochew and she stated she would prefer to speak in Bahasa Indonesia. That was the language she used throughout today's hearing.
The Tribunal was unable to make a decision favourable to the applicant because of insufficient information. The applicant had been invited to attend a hearing before the Tribunal by letter dated 25 June 2008 (CB 52) but she failed to attend. I am satisfied from the court book and from the affidavit of Peter Snell that the Tribunal met its obligations under s.425 and s.425A of the Migration Act 1958 (Cth) (“the Migration Act”) and the Migration Regulations 1994 (Cth) (“the Migration Regulations”) to invite the applicant to a hearing. The Tribunal was entitled to elect to proceed in the applicant's absence pursuant to s.426A of the Migration Act. That is what the Tribunal did.
The substance of the Tribunal's reasoning appears in paragraph 31 of its decision: CB 65. The conclusions reached by the Tribunal were open to it on the material before it. The evidence supporting the Tribunal's decision was the information supplied by the applicant herself which was insufficient. There was no obligation on the Tribunal to make its own independent inquiries.
The procedure followed by the Tribunal was fair. There was no want of natural justice. Neither was there any failure by the Tribunal to consider the current situation in Indonesia. I otherwise agree with and adopt for the purposes of this judgment paragraphs 3.3 to 3.8 of the Minister's written submissions, with any necessary amendments:
The basis of the Tribunal’s decision was its inability on the available information to reach the level of satisfaction required of it to grant the applicant a protection visa. 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 satisfied. It will be difficult for the Tribunal to achieve the requisite degree of satisfaction if the applicants do 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.[1] In NAVX, the Full Court said this:
[1] Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) at [24] citing NAST v Minister for Immigration [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ)
In assessing the adequacy of [the Tribunal’s] reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.[2]
[2] NAVX v Minister for Immigration [2004] FCAFC 287 (French, Emmett and Dowsett JJ) at [5]
If the Tribunal has complied with ss.425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s.426A of the Migration Act to consider and decide the matter without conducting any further inquiries.[3] Relevantly, the hearing invitation sent by the Tribunal to the applicant and dated 25 June 2008 (CB 52-53):
[3] NADK of 2002 v Minister for Immigration [2002] FCAFC 184.
a)invited the applicant to appear before it to give evidence (s.425);
b)gave the applicant notice of the specified day, time and place at which the applicant was scheduled to appear;
c)was given to the applicant by one of the means specified in s.441A - namely, s.441A(4) because it was dispatched within three days of its date[4] by prepaid post to the last address for service nominated by the applicant;
d)provided a period of notice[5] to the applicant that was at least the prescribed period of 14 days provided for by reg 4.35D of the Migration Regulations; and
e)contained a statement to the effect of s.426A (regarding the options available to the Tribunal if the applicant 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 reg. 4.35D of the Migration Regulations. The applicant failed to respond to the invitation and failed to attend at the allocated time for the hearing. As the applicant did not attend the scheduled hearing, the Tribunal was entitled to proceed as it did in accordance with s.426A of the Migration Act. The Tribunal was not obliged to accept the applicant’s claims at face value and by choosing not to attend the hearing, the applicant was to be taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of her documents would be noted by the Tribunal without her having an opportunity to expand upon or clarify them.[6]
To the extent that it is alleged that the Tribunal failed to give natural justice, this claim is meaningless without particulars.
There can be no error of law in the Tribunal failing to undertake investigations as to the current situation in Indonesia. It was for the applicant to place such material as was necessary to persuade the Tribunal of her claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims. The Tribunal had no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had, which might enable it to investigate.[7] The second ground must fail.
The applicant’s assertion that there was no evidence or other material to justify the making of the decision misunderstands the basis of the Tribunal’s decision. The Tribunal affirmed the decision of the delegate because it could not be satisfied that the applicant had a well-founded fear of persecution due to the lack of evidence before it and the inability to obtain further information from the applicant at a hearing. The third ground must fail.
[4] See affidavit of Peter Snell dated 27 October 2008.
[5] Regulation 4.35D provides for the purposes of s.425A(3) a prescribed period of fourteen days between the date that notification of the hearing date was deemed to have been received by the applicant and the date of the scheduled hearing.
[6] S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [25]
[7] VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27].
The applicant has failed to demonstrate any arguable case of jurisdictional error. She elected not to make any oral submissions in support of her application. No jurisdictional error is apparent from my own reading of the available information.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,500, although the Minister's actual legal costs are substantially more than that. The applicant asserted an inability to pay, but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 December 2008
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