SZMWY v Minister for Immigration
[2009] FMCA 226
•18 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 226 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – applicant did not attend hearing before Refugee Review Tribunal – whether Refugee Review Tribunal is entitled to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 425A(1)(a); 426A; 441A(4); 474; pt.8 div.2 |
| 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: | SZMWY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2841 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 March 2009 |
| Date of last submission: | 18 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2009 |
REPRESENTATION
| Applicant appeared in person with Urdu interpreter |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Mr J. Pinder, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2841 of 2008
| SZMWY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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 7 October 2008 and handed down the same day.
The applicant claims to be a citizen of Pakistan (“the Applicant”) and a member of the Pakistani People’s Party (“the PPP”).
The Applicant arrived in Australia on 12 February 2008 having departed legally from Lahore on a passport issued in his own name and a UC subclass 456 visa issued on 12 March 2007.
On 12 March 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 10 June 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 27 June 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 7 October 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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 (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
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.”
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
In his protection visa application the Applicant claimed that he is a member of the Shaheed Bhutto Group faction of the PPP (“the PPP-SB”). The Applicant claimed that the party is a breakaway faction of the PPP. He claimed that he was entrusted to introduce the party into various circles in the Sialkot Division, from where he comes. The Applicant claimed that his division clashed with the PPP and that he was suspected of being a member of the anti-Pakistani party. The Applicant claimed that he was arrested and beaten by police on the instruction of authorities and attacked by members of the other PPP party with firearms on his way home. The Applicant claimed he was unable to obtain protection from the Pakistani authorities and that he will be targeted and killed as a political activist by authorities if he was to return to Pakistan.
The Delegate’s decision
On 10 June 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 Delegate noted that the Applicant did not submit any documentary evidence in support of his claim of involvement with the PPP-SB or of any serious harm suffered by him at the hands of the Pakistan authorities or his political opponents. The Delegate found the Applicant’s claims of his political activities and harm in Pakistan were not credible.
The Tribunal’s review and decision
On 27 June 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application.
On 10 July 2008, the Tribunal wrote to the Applicant informing him 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 20 August 2008 to give oral evidence and present arguments (“the Hearing Invitation”).
On 19 August 2008, the Tribunal received from the Applicant a Response to Hearing Invitation Form signed by the Applicant and indicating that he did not wish to come to a hearing.
The Tribunal noted that it had before it the Department’s file.
In deciding to proceed with its review without taking any further steps to enable the Applicant to appear before it, the Tribunal noted that it wrote to the Applicant on 10 July 2008 inviting the Applicant to come to a hearing. The Tribunal noted that the letter informed the Applicant that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.
The Tribunal noted that the Hearing Invitation was sent to the Applicant in accordance with ss.425A(1)(a) and 441A(4) of the Act.
Further, the Tribunal noted that, on 14 August 2008, the Tribunal contacted the Applicant by telephone to enquire why the Applicant had not replied to the Hearing Invitation. The Tribunal noted the Applicant’s response that he would attend the hearing and that he would return the completed Response to Hearing Invitation Form. On 19 August 2008, the Tribunal received the completed Response to Hearing Invitation Form. However, as the Tribunal noted, the Applicant had ticked the box which indicated that the Applicant did not want to come to a hearing. The Applicant also consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow the Applicant to appear before it.
In the circumstances, the Tribunal purported to exercise its power pursuant to s.426A of the Act to proceed to make a decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal then summarised the written claims made by the Applicant in his protection visa application. The Tribunal found that the Applicant is a citizen of Pakistan, based on the certified copy of his passport.
The Tribunal found the Applicant’s claims to be “lacking in detail”. In particular, the Tribunal noted that it was unable to explore with the Applicant his knowledge of the formation, structure and aims of the PPP-SB and his level of involvement with the party from this student days to the present. The Tribunal noted that it was unable to explore with the Applicant further information about the demonstrations in which he alleged to have participated and his claims of harassment, arrest and attack by police and other members of the PPP. The Tribunal also noted that it was unable to explore with the Applicant why he was unable to obtain protection from the authorities in Pakistan.
The Tribunal found that the information submitted by the Applicant did not provide sufficient detail to satisfy the Tribunal as to the veracity of the Applicant’s claims or that he had a well-founded fear of persecution for a Convention-related reason.
As the Tribunal was not satisfied on the evidence before it that the Tribunal met the criteria for being a refugee, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter.
On 1 December 2008 the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and written submissions in support of his application.
At the directions hearing, the Court referred the Applicant to the NSW RRT Legal Advice Scheme for free legal advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services. The Panel Advisor, Mr McAuley, notified the Registry that he organised a conference with the Applicant, which the Applicant failed to attend, and so provided the Applicant with written advice.
On 30 January 2009 the Applicant filed an amended application.
The grounds of the amended application are an unhelpful mixture of claims and submissions interspersed with bare assertions of error unsupported by relevant particulars. No written submissions were filed in support of the amended application and the Applicant was unable to make any meaningful submissions to explain the grounds or in support of his application generally.
At the heart of the Applicant’s complaints, appears to be a complaint that the Tribunal did not accept the veracity of his claims based on the material that he had provided in support of his protection visa application such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41per Mason J).
Peppered throughout the amended application are suggested complaints that:
i)the Tribunal failed to investigate his claims;
ii)the Tribunal relied on country information rather than the Applicant’s claims; and,
iii)the Tribunal did not take into consideration “the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned.”
i) The Tribunal failed to investigate the Applicant’s claims
To the extent that the Applicant’s amended application was complaining that the Tribunal did not investigate the Applicant’s claims, there is no such positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
It is not any part of the duty of a decision maker to make the applicant’s case for him. A duty to investigate may only arise where it is obvious that there is material available that is centrally relevant to the decision to be made, such that it would be unreasonable for the decision maker to proceed to make its decision without attempting to obtain that information (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 (“Prasad”)). A fair reading of the Tribunal’s decision record does not suggest that there were circumstances in this case that made investigation by the Tribunal obligatory in terms of Prasad.
ii) The Tribunal relied on country information rather than the Applicant’s claims
In relation to the Applicant’s assertion that the Tribunal relied on country information in preference to the Applicant’s claims, a fair reading of the Tribunal’s decision does not support such an assertion. The Tribunal does not in fact refer to any country information. The Tribunal simply was not satisfied on the evidence and material before it that the Applicant met the criteria for being a refugee. The Applicant must be taken to have been on clear notice of that matter. The Tribunal’s Hearing Invitation made clear to the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone.
As referred to above, the Applicant responded to the Hearing Invitation indicating that he did not wish to come to the hearing and consenting to the Tribunal proceeding to make its decision on the review without taking any further steps to allow the Applicant to appear before it.
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 his application was rejected because, amongst other reasons, he 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”.
The Tribunal’s reason for affirming the decision under review was based only on its evaluation of the Applicant’s claims and material given by the Applicant in support of his protection visa application. The Tribunal’s lack of satisfaction that the Applicant has a well-founded fear of persecution for a Convention-related reason was based on its consideration and evaluation of the Applicant’s claims and material. The Tribunal’s conclusions were open to it on the evidence and material before it and for the reasons it gave.
It is for the Applicant to satisfy the Tribunal that all of the statutory elements for a protection visa are made out. In particular, the Tribunal noted that “Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case will have to be supplied by the Applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the Applicant’ case for him or her. Nor is the Tribunal required to accept uncritically all or any of the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v Miea (1985) 6 FCR 155 at 169-70)”.
iii) The Tribunal did not take a claim into consideration
In relation to the Applicant’s oblique complaint in the amended application that the Tribunal did not take into consideration “the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned”, the Court invited the Applicant to identify where such a claim was made by him. The Applicant referred the Court to the claims in his protection visa application where the Applicant stated:
“I was arrested by police on the instructions of the authorities. I was bashed by the police. I had to undergo the torture of the police. I was released by the police. But still the workers of the opposite party PPP attacked the applicant and his older brother was coming out from the house. We were attacked by firearms…”
The Tribunal’s summary of those claims is as follows:
“He claims he was arrested and bashed by police on instruction of the authorities, and he was attacked by the opposite PPP party while coming home from his house with firearms.”
The Applicant was unable to explain to the Court in what way the Tribunal summary was incorrect.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal applied the appropriate principles to its consideration of whether or not the Applicant had a well-founded fear of persecution for a Convention-related reason. Not having been satisfied that the Applicant met the mandatory statutory criteria, the Tribunal correctly affirmed the decision under review as s.65(1)(b) of the Act made clear it must do.
In the circumstances, the Tribunal’s decision is not affected by jurisdictional error.
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.
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.
The proceeding before this Court, commenced by way of application filed on 3 November 2008, is dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 18 March 2009
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