SZNEP v Minister for Immigration
[2009] FMCA 300
•6 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 300 |
| MIGRATION – Review of Refugee Review Tribunal decision – non-appearance before the delegate and the Tribunal – no explanation for failure to attend – no failure to accord procedural fairness – no unreasonableness in Tribunal’s findings – no failure to take into account claims before the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.426A, 422B, 425, 425A, 441A, 441C Migration Regulations 1994 (Cth), reg.4.35D |
| Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999 |
| First Applicant: | SZNEP |
| Second Applicant: | SZNKL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 194 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 April 2009 |
| Date of Last Submission: | 6 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2009 |
REPRESENTATION
| Appearance for the Applicants: | In person |
| Solicitors for the Applicants: | In person |
| Appearance for the Respondents: | Ms E Baggett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The applicant’s wife be joined as a party to these proceedings.
The application made on 27 January 2009 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 194 of 2009
| SZNEP |
First Applicant
| SZNKL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made on 27 January 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 19 December 2008, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.
Background
The first respondent has put a bundle of relevant documents before the Court (Court Book – “CB”). I note in particular the following relevant background.
1)The applicant husband is a national of Indonesia who arrived in Australia on 15 June 2008 (CB 14). He and his wife, the second applicant before the Court, applied for protection visas on 23 July 2008 (CB 1 to CB 35). I note that the applicant wife applied as the applicant husband’s dependant.
2)This application before the delegate was refused on 3 October 2008 (CB 46 to CB 54). The applicants had been invited to an interview before the delegate but did not attend (CB 44, CB 53.8). The delegate’s reason for refusing the application was that it had: “not been possible to talk to [the applicant] about matters that are relevant to this application”. The delegate said (at CB 54.3):
“In particular, I am unable to verify the written claims put forward by the applicant in support of his application for a Protection Visa.”
3)The delegate was unable to reach the requisite level of satisfaction that the applicant had a well-founded fear of persecution such that the visa must be granted.
4)On 30 October 2008 the applicants applied to the Tribunal for review (CB 55 to CB 58). No further claims were put before the Tribunal.
5)The Tribunal wrote to the applicants by letter dated 31 October 2008 and sent by registered post (CB 59 to CB 60) to their residential address (see CB 56.2 and CB 59.2). This letter acknowledged receipt of the application and, amongst other things, raised the possibility of a hearing before the Tribunal. The letter provided information as to the importance of such a hearing.
6)By letter dated 30 November 2008 the Tribunal again wrote to the applicants by letter sent by registered post to the applicants’ residential address inviting the applicants to attend a hearing before the Tribunal scheduled for 15 December 2008. There were two important matters addressed in this letter. The first was that the Tribunal explained that on the material that had been put before it, it was unable to make a favourable decision, that is that it was unable to find that the applicants were persons who were entitled to protection in Australia, and that the invitation to the hearing was the opportunity for the applicants to put before the Tribunal evidence and arguments in support of their claim. The second matter of importance in the letter was that the Tribunal notified the applicants of the possibility that a failure to attend at the hearing may result in the Tribunal proceeding to make a decision without any further notice, or taking any further action to enable the applicants to appear before it.
7)It would appear from the material that is before the Court (CB 53) that the applicant husband responded to this invitation by returning a completed “Response to Hearing Invitation” form, and in spite of the date of the signing of this document (25 November 2008), it would appear that the Tribunal received this document on 24 November 2008. Be that as it may, the important thing is that the applicant husband indicated that he did wish to attend at the hearing before the Tribunal (CB 63). However, at the appointed time on the day of the hearing neither of the applicants made any appearance.
8)On 19 December 2008, pursuant to s.426A of the Act, the Tribunal proceeded to make its decision (CB 68 and CB 73).
The applicant’s claims to protection
The applicants’ claims to fear harm in Indonesia were said to arise from the interest taken in the family by a person in their neighbourhood who sought to preach Islam, in particular to the applicant wife. The applicants claim that this person spoke about attacking and killing Western people to avenge the deaths of Muslim people in Iraq and Afghanistan. The applicants claim that following the bombing in Bali in October 2005, the applicant husband reported this neighbour to police, who subsequently came to the applicants’ home with “three friends” and threatened both the applicant and his wife with death.
The Tribunal
The Tribunal found that it was entitled to proceed to a decision pursuant to s.426A of the Act in circumstances where the applicant did not attend at the hearing. In the circumstances, the Tribunal was not in a position to test the claims and was unable to explore certain details relating to the claims. The Tribunal found, therefore, that it could not be satisfied as to the accuracy of the factual account provided by the applicant husband in the statement attached to the protection visa application. The Tribunal found that on the evidence before it, it could not be satisfied that the applicants faced a real chance of persecution if they were to return to Indonesia and therefore that the applicant husband, and in turn the applicant wife, were not persons to whom Australia had protection obligations. It therefore affirmed the decision under review.
Application to the Court
The application made to this Court puts forward three grounds each devoid of any particularity or details whatsoever. For the record, the grounds are as follows:
“1.The applicant was denied procedural fairness in connection with the making of the decision.
2.It is not reasonable for the Tribunal to point out that I would not suffer prosecution [sic] if I return to Indonesia in the foreseeable future.
3.The decision did not take into account that I would be placed in danger if I return to Indonesia.”
Despite opportunity to provide an amended application giving further particulars, nothing else has been put before the Court by the applicants.
Hearing before the Court
At the hearing before the Court the applicant husband appeared in person. The applicant wife, who had not been formally a party to proceedings before the Court, also appeared. Having been satisfied that it was appropriate to do so, I made an order joining the applicant wife as a party to these proceedings. The applicants were assisted by an interpreter in the Indonesian language. When given the opportunity to make submissions to the Court, or indeed to tell the Court anything in support of their application, the applicants said that they had nothing to say. When strongly pressed by the Court, the best that was put to the Court was that it was difficult for them in Indonesia.
Ground One: Denial of Procedural Fairness
The first ground contends that the applicants were denied procedural fairness in connection with the making of the decision. No particulars whatsoever have been provided to the Court.
This is a case to which s.422B of the Act applies. This means that the provisions that are set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). Bearing in mind these authorities, and looking at the material that has been put before the Court, I cannot see that the Tribunal failed to comply with the procedural code as set out in Division 4 of Part 7 of the Act. In short, I cannot see that the applicants were denied procedural fairness.
The statutory regime relevant to applications for protection visas is found in ss.65 and 36(2) of the Act. In effect, these sections require the Tribunal to reach a requisite level of satisfaction that the applicants meet the criteria for the grant of a protection visa. In essence, this means that the Tribunal must be satisfied that the applicants meet the definition of “refugee” as set out in Article 1A(2) of the United Nations Refugee Convention. The law, in my view, is clear on this issue. If the Tribunal is unable to reach this requisite level of satisfaction, the protection visa must be refused (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (“NAST”) at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”)). I note and agree with the first respondent’s written submissions in this regard.
Following receipt of the delegate’s decision record, and I am satisfied that the applicants were in receipt of that record (see CB 46.3 and CB 57.7), the applicant husband would have been clearly on notice that, notwithstanding the statement that had been provided in support of the application for a protection visa (CB 33 to CB 35), the failure by the applicant husband to attend an interview before the delegate, meant that the delegate was unable to verify the applicant’s claims, and was therefore unable to reach the requisite level of satisfaction such that the protection visa must be granted (see, in particular, CB 54.3).
The applicant was told of the importance of attending a hearing before the Tribunal. I have already referred to the two letters from the Tribunal inviting the applicants to a hearing and putting the applicant on notice as to the importance of the hearing and the possible consequences of a failure to attend the hearing. It is clear that the Tribunal complied with its statutory obligations pursuant to s.425 of the Act to invite the applicants to a hearing, and from the material before the Court, it is clear that the Tribunal also complied with its obligations pursuant to s.425A of the Act.
The letter was sent to the applicants’ residential address. Given, however, that the applicants provided no alternative address for service to the Tribunal, and given that there was no evidence brought to this Court by the applicants to contradict the proposition that the residential address was the only address provided to the Tribunal (see CB 57), the Tribunal did comply with the provisions of s.441A(4)(c)(ii) in sending the invitation to hearing to the last residential address provided to the Tribunal by the applicants, in circumstances where the applicants were plainly the relevant recipients in connection with the review. I also note the time and date provided by the Tribunal for the hearing complied with the relevant notice periods under the Act, and I refer in particular to ss.441A(4) and 441C(4), and reg.4.35D of the Migration Regulations 1994 (Cth). The applicant husband indicated that he wished to attend the hearing (CB 63).
Despite invitation to do so, on the appointed day and at the relevant time the applicants did not appear. There is no evidence before the Court that either applicant made any attempt to notify the Tribunal of any difficulty in attending, nor did they seek any adjournment. Before the Court today, neither applicant provided any explanation whatsoever for failing to attend the hearing, nor indeed made any reference to any difficulty in attending the hearing before the Tribunal. Having complied with its statutory obligations, and given the failure of the applicants to appear at the appointed and scheduled time, it was plainly open to the Tribunal to proceed to make a decision on the review without taking any further action to enable the applicants to appear before it. This is particularly the case where, as in the case before the Court now, the Tribunal has heard nothing from the applicants as to any difficulty in attending. I note that the Tribunal has the power to proceed pursuant to s.426A of the Act where a hearing invitation has been properly given under the Act and is under no further obligation to search the papers lodged with it to discern any other means of communicating with the applicant (Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39], per Spender, French and Cowdroy JJ).
Section 424A of the Act obliges the Tribunal to invite applicants to comment on information that it considers would be the reason or a part of the reason for affirming the decision under review. This obligation, however, is not engaged in circumstances where the reason for the Tribunal’s decision was a result of the lack of detail or information or particulars before it (see, for example, SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11, NAST).
The Tribunal was unable to reach the requisite level of satisfaction such that the protection visas must be granted. The Tribunal’s findings that the applicants’ claims were unsubstantiated and that they lacked detail were findings of fact open to the Tribunal to make on what had been put before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). Plainly, the Tribunal is not required to uncritically accept any or all of an applicant’s claims or assertions put before it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451). There is no jurisdictional error (legal mistake) in the Tribunal being unable to be satisfied on the material before it that the applicants were entitled to protection (see VSAF). In all, therefore, I cannot see that the applicants were denied procedural fairness in connection with the making of the decision. This ground must fail.
Ground Two: Findings Unreasonable
Ground two in the application asserts that it was not reasonable for the Tribunal to find that the applicant husband would not suffer persecution if he were to return to Indonesia in the foreseeable future. For the reasons outlined above, the Tribunal’s conclusion was plainly open to it on the material before it, and to the extent that it may be said that unreasonableness is available as a ground of review (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [34]-[37], Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), I cannot see that the Tribunal acted unreasonably, or that it was not reasonable for the Tribunal to reach the conclusion that it did.
This ground, as put forward by the applicants, seems to ignore the fact that the delegate found against them for exactly the same reason as did the Tribunal. That is, that the applicant husband’s written statement attached to the protection visa application lacked detail. The applicants chose not to attend an interview with the delegate. After having clearly been put on notice of the importance of attending a hearing before the Tribunal, and having been put on notice that the Tribunal could not make a decision in their favour on the material before it, the applicants put no further information or material before the Tribunal. Further, and importantly, despite at first indicating that he would attend the hearing, without any explanation whatsoever, the applicant husband did not attend the hearing. The inevitable consequence of the failure to attend is rejection of the application (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5], per French, Emmett and Dowsett JJ, SZEGZ v Minister for Immigration and Multicultural Affairs [2005] FCA 999 at [16]-[17], per Conti J).
The Tribunal’s alleged unreasonableness as set out in ground two is that it was not reasonable for the Tribunal to point out that he would not suffer persecution if he were to return to Indonesia in the foreseeable future. The applicants do not say why it was not reasonable for the Tribunal to reach this conclusion in all the circumstances. It must be said, and with respect to the applicants, that there is an element of disingenuousness on the part of the applicants in making this complaint. The applicants were plainly on notice after the delegate’s decision of the importance of providing more detail in support of the claims and, having failed to attend a hearing before the Tribunal, provided no explanation or made no attempt to contact the Tribunal, but now complain to this Court that the Tribunal acted unreasonably. This ground does not succeed.
Ground Three: Failure to Take Into Account a Matter
Ground three in the application asserts that the Tribunal failed to take into account that the applicant husband would be placed in danger were he to return to Indonesia. Again, this ground plainly does not succeed. The Tribunal did have regard to, and did take into account, the scant material that the applicants put before it. All that the applicants had put was the statement attached to the protection visa application. The Tribunal reproduced its understanding of these claims in its decision record. It specifically addressed the fact that the applicants’ statement in this regard contained unsubstantiated assertions and, as it had been unable to explore the detail of these claims, or indeed the truthfulness of these claims, it was unable to be satisfied as to any of the matters raised in the applicant husband’s statement of claimed experiences. Ultimately, as I have already said, the Tribunal was not able to be satisfied that the applicant husband had a well-founded fear for the reason that the applicant husband himself had failed to avail himself of the opportunity to provide substantiation, detail, and support to the outline of claims of what he said occurred in Indonesia. This ground also fails.
Further Consideration
I must make some reference to the way that the applicants have conducted themselves throughout the period of the application, in particular before the Tribunal, but also in the conduct of their case before this Court. As discussed during the hearing, I have cause to understand the difficulties faced by people who come to this country seeking protection. I well understand the difficulties, given my own family experience, faced by people from a non-English speaking background, unfamiliar with how matters operate in this country, in dealing with, and conducting themselves in relation to, matters of this type in Australia. But it must be said that this Court has had a great deal of experience now in seeing many people who come to this Court complaining about decisions of the Tribunal, and who, despite the difficulties encountered, do everything that is reasonably possible both before the Tribunal and before this Court to prosecute and promote their claim. The applicants before the Court today leave the Court with some doubt as to the strength with which they sought to prosecute their claims before the Court.
Apart from an initial written statement attached to the protection visa application, the applicants did nothing to support their claims before the delegate, did nothing to support their claims before the Tribunal, and have done nothing beyond the merest, simplest statement of three sentences in their application to the Court to prosecute their claims before this Court. The applicants were offered the opportunity of participating in the Federal Court’s Refugee Review Tribunal Legal Advice Scheme, and chose to do so. They had the opportunity to obtain advice and provide details and some particularly to the Court in support of their claims, but chose not to do so. When they came before the Court today, they said they had nothing to say.
In all, however, for the applicants to succeed today, notwithstanding the lack of any effort on the part of the applicants, the Court did look at all the material that had been put before it, but simply could not discern jurisdictional error such that the applicants could succeed today. In the absence of any such jurisdictional error, this application is dismissed.
Costs
The first respondent has asked that an order for costs be made. It is appropriate that such an order be made. Again, unfortunately, despite opportunity, the applicants have chosen not to say anything to the Court about whether the order should or should not be made. I cannot see any reason to argue against the making of this order. As to the amount, I note that at the stage of this matter, an amount of $5,000 would have been available to the first respondent pursuant to the relevant schedule to the Rules of the Court. The first respondent has asked for an amount far less that that, that is, $3,700. In all the circumstances, and bearing in mind the work having been done by the first respondent’s solicitors in responding to this application, I am of the view that the amount sought is a reasonable amount in the circumstances. I will make the order in the amount sought.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 9 April 2009
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