SZNFE v Minister for Immigration
[2010] FMCA 181
•24 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 181 |
| MIGRATION – Application to set aside orders dismissing an application for review of a decision of the Refugee Review Tribunal and an application that the matter be transferred to the Federal Court of Australia pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules– whether in interests of justice to set aside orders – explanation for the applicant’s non-appearance – whether futile to set aside orders. |
| Migration Act 1958 (Cth), ss.65, 91S, 189, 414, 415, 424, 424A, 425, 426A, 430, 476 Federal Magistrates Court Rules, rr.13.03C, 16.05 |
| AB v Federal Commissioner of Taxation (1998) 157 ALR 510; 98 ATC 5100 Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZNFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2133 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 28 January 2010, 2 February 2010, 23 March 2010 |
| Last date for submissions: | 23 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s application to set aside the orders made by this court on 22 October 2009 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2133 of 2009
| SZNFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application to set aside orders made by this court on 22 October 2009 dismissing the applicant’s application filed on 2 September 2009 for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The application was dismissed on the basis of the non-appearance of the applicant at the hearing on 22 October 2009 pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules. In addition, applications filed by the applicant on 28 September 2009 and 20 October 2009 for transfer of the judicial review proceedings to the Federal Court of Australia were also dismissed pursuant to r.13.03C(1)(c) (see SZNFE v Minister for Immigration & Anor [2009] FMCA 1058).
The applicant, who claimed to be a citizen of the Republic of Korea, arrived in Australia on 28 July 2008. He was taken into immigration detention following his arrival in Australia. He applied for a protection visa on or about 12 August 2008 with the assistance of a migration agent. In the course of the processing of the visa application the applicant took issue with the correctness of information provided in parts of the original protection visa application form. He provided amendments and corrections to the Department as well as a considerable amount of supporting documentation. The application was refused on 10 October 2008 and the applicant sought review by the Tribunal. He declined an invitation to attend a Tribunal hearing. The Tribunal as originally constituted affirmed the delegate’s decision on 13 January 2009.
The applicant sought judicial review of the first Tribunal decision in this court. On 7 May 2009 Scarlett FM quashed the first decision of the Tribunal and remitted the matter to the Tribunal for determination according to law (see SZNFE v Minister for Immigration & Anor [2009] FMCA 364).
The Tribunal as reconstituted invited the applicant to attend a hearing on 26 June 2009. The applicant declined the invitation, as discussed further below. The Tribunal affirmed the decision not to grant the applicant a protection visa on 11 August 2009. It is that second Tribunal decision that is the subject of these proceedings.
The applicant filed an application in this court on 2 September 2009. He took issue not only with the second Tribunal decision of 11 August 2009 but also with the decision of the delegate, the first Tribunal decision and the decision of Scarlett FM (notwithstanding that he was successful in those proceedings). He foreshadowed that he would file an amended application in his affidavit in support of the application filed on 2 September 2009.
In addition to the affidavit accompanying the original application of 2 September 2009, in the period up to 20 October 2009 the applicant filed numerous other documents, including a further eight documents described as affidavits (although two of these were in essence applications for transfer of the proceedings to the Federal Court and the others were in large part submissions). He also filed a 66 page “Amended Application” (containing submissions), a list of authorities and other written submissions on 9 September 2009.
However the applicant, who was and is in Villawood Detention Centre, did not attend the hearing on 22 October 2009, notwithstanding that he had attended the directions hearing on 17 September 2009 at which the matter was listed for hearing. His applications for review of the second Tribunal decision and for transfer of the matter to the Federal Court were dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules on 22 October 2009.
On 7 January 2010 the applicant filed an application in a case to set aside the orders made on 22 October 2009 as well as an affidavit in support of that application. He has filed a number of other documents since that time, including a further eight documents described as affidavits largely in the nature of submissions. There was some apparent duplication in the documents filed. The matter was heard on 28 January 2010, 2 February 2010 and 23 March 2010.
In the course of the hearing I endeavoured to clarify with the applicant which of the filed documents he relied on. In addition to the application in a case filed on 7 January 2010 he relied on each of the documents filed on or since that date. The applicant also filed written submissions (described as “Argument against the submission of the Minister”) in response to submissions filed by the first respondent. During the time that the hearing was adjourned, because it was not completed in the time allotted, he presented a further document in the nature of an amended submission. On 2 February 2010 the applicant also tendered a document described as “Important Evidence for the Reinstatement Hearing” as well as a complete copy of the document described as “affidavit (8)” which consisted of a 70 page proposed amended application including submissions. In “affidavit (6)” the applicant sought interlocutory relief should a scheduled removal order from Australia be made against him. This issue is discussed further below.
The first respondent relied on written submissions prepared for the hearing of 22 October 2009 and filed on 19 October 2009 as well as submissions and an affidavit of Jaimee Dinihan sworn on 25 January 2010 that were filed on 27 January 2010.
On 19 March 2010 the applicant filed an application in a case seeking to rely on a further written submission. This was not opposed by the solicitor for the first respondent.
Under r.16.05(2)(a) of the Federal Magistrates Court Rules “[t]he Court may vary or set aside its judgment or order after it has been entered if …the order is made in the absence of a party”. The application presently before the court is of this nature. The first respondent opposed the application.
It is therefore necessary for the court to determine whether it is appropriate to exercise its discretion under r.16.05. Such discretion must be exercised judicially and with caution, although it is not “so narrow or exceptional as to be virtually non-existent” (see AB v Federal Commissioner of Taxation (1998) 157 ALR 510 at 516; 98 ATC 5100).It is well established that an order may be set aside where it is in the interests of justice to do so (see Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38).
In a case such as this it is relevant to take into account the reasons given for non-appearance and, in particular, whether the applicant can show that by accident and without fault on his part the orders were made in circumstances that warrant the exercise of the discretion under r.16.05. In other words it is relevant to have regard to any explanation for the applicant’s failure to appear on 22 October 2009.
In addition, it is relevant to have regard to whether or not there was an arguable case or question raised by the applicant in the original application and whether there is any prospect of the applicant establishing a ground for review of the second Tribunal decision or whether it would be futile to set aside the orders dismissing the application for review (see Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448).
Insofar as there was any suggestion that the court should determine whether there were any prospects of success in the application for transfer of the matter to the Federal Court, in my view, as reinstatement of the substantive proceedings would be a prerequisite to any transfer of the matter, it is appropriate to consider the merits of the substantive application for review of the Tribunal decision. Clearly, if there is no prospect of success in relation to review of the second Tribunal decision, reinstatement of the application for transfer of the matter to the Federal Court would also be futile.
The Tribunal decision
Because of the nature of the submissions made by the applicant in these proceedings it is relevant to describe in some detail the decision and procedures of the Tribunal as reconstituted before considering the applicant’s reasons for non-appearance at the hearing on 22 October 2009.
In its reasons for decision dated 11 August 2009 the Tribunal outlined the applicant’s claims and evidence. In doing so the Tribunal referred to the fact that the applicant was of the view that parts of the original protection visa application were not correct. It stated that it had considered the applicant’s application “as amended and corrected by him”.
The Tribunal set out the applicant’s claims that he had “lived for periods in the UK, Canada and Tokyo as well as in Korea where he was living just prior to coming to Australia”. It recorded his evidence that he “had to leave Canada and the UK after unsuccessfully applying for refugee status” and that he had also unsuccessfully applied for refugee status in Germany from the UK. The applicant had also “travelled to New Zealand in 2005 but was returned from the airport”. He claimed that he had also been to UNHCR in Tokyo, but that his application was unsuccessful.
The Tribunal referred to the fact that the response in the original protection visa application to question 41 on Form C (“Why did you leave that country?”) was “I have suffered all my life my groups supported by the government because of my family background because my family was associated with the Korean monarchy. I believe that I will continue to face serious discrimination and may even be killed if I return to Korea”, but that the applicant indicated that the page containing this answer was “false” and referred to a handwritten statement he had sent to the delegate of the first respondent. The Tribunal set out the fact that in that statement, in addressing why he left Korea the applicant had referred to his family/ancestral background going back to a “Coup d'état power in 1884”, and stated that he left his country because his status at school as an honours student was downgraded and his capacity to pursue knowledge was downgraded by “the korean group containing officials”. He claimed that “the Korean government had failed to protect him against state criminals … at the centre of Korean nationalism”; that the “Korean intensive group and the Korean National Intelligence Agency” were trying to find a way to kill him after “blinding” his website; and that he would be killed by the “korean chauvinistic group collected in mass by the centre family clique of Korean - nationalism”. The applicant also claimed that he would be harmed by the “false religion body in the village which this applicant’s ancestor built”; by the “Korean National Imformation (sic) Bureau” and others related to them and that the “korean group/state criminals believe this applicant not to quit pro-Japanese tendency permanently” and thought that he had “incited watchfulness of U.S.A and Japan in the North-east Asia against Korean nationalism”. The applicant claimed that the “authorities in his country [would] not protect him because they consider[ed] he ha[d] pro Japanese tendencies and ha[d] demonstrated anti Korean nationalism”.
The Tribunal referred in detail to the supporting documents provided in support of the protection visa application (some of which was in Korean) and the various submissions about the applicant’s claims as follows:
The application includes five pages of references to documents the applicant is providing to support his claims; some of these references are in the applicant’s language. Documents attached to the first application include a document dated 29 May 2006 entitled “Acceptance Certificate of Application for Truth Close examination” with the applicant named as the applicant in that document, a document dated 13 November 2007 headed “Decision Letter” with the applicant named as the “Recipient”, a document dated 13 November 2007 headed “Written Decision for the Truth Close Examination About Cheongweon-Ohctang Storehouse Slaughter Case Against Intelligence Union”; the provenance of these documents is unclear to the Tribunal. Further there are many other pages of documents included in the applicant’s own language; there is a copy of a handwritten document being a facsimile transmission record dated 20 December 2004 from the applicant to “Northern Career Resource Centre” asking for his website to be restored. In addition the applicant provided a very large quantity of other documents to support his claims, including much material in his own language. Some of the material in English appears to relate to school violence and “Iljinhoe”. There are also documents that appear to relate to proceedings by the applicant in “Seoul Administrative Court” against the Minister of Education and Human Resources Development” and others and also proceedings against the “Governor of the ChungcheongBuk-do Education Office” and others and other documents that appear to be documents in relation to other claims in other jurisdictions including refugee, civil and criminal claims; again the provenance of these documents is unclear to the Tribunal. Also included in the information sent to the delegate in support of the applicant’s claims there is country information about the relationship between Japan and Korea in the past, an article in relation to Korea entitled “Growth of the Forces of Enlightenment” and an article entitled, “The Reform of the Progressive Party”. Also forwarded is information about the applicant’s family (Family Census Register) and about his residency.
The Tribunal also summarised the applicant’s submissions in relation to his former migration agent and what he described as “forgeries” in his original protection visa application.
The Tribunal found that a written “interview statement” provided by the applicant to the Department was “difficult to understand”, although it observed that the applicant asserted that he was “against the bad and wrong nationalism of South Korea & North Korea”.
The Tribunal also referred to a Departmental file note stating that the applicant had refused to have an interview with the delegate on 25 September 2008 recorded and to confirmation of this is in a letter from the applicant to the Department. According to the delegate’s file note the applicant had said that “it would be pointless to discuss his claims during an interview as everything he wanted to say” was in the documents he had sent to the Department and he indicated relevant documents. The Tribunal stated that this was supported by the applicant’s interview statement to the effect that: “This interview come under pointless interview because massively analystic and critical information and written statement has been lodged to the Department”. The Tribunal recorded, however, that the “applicant did tell the delegate…that he would be killed if he returned to Korea and [that the then] current government would be involved”.
The Tribunal also referred to a record of an interview with the applicant conducted at the airport when he arrived in Australia on 28 July 2008 with the assistance of a Korean interpreter. The record of interview recorded that the applicant had objected to the interview being recorded and was not signed by the applicant. The applicant was said to have claimed that he had applied to migrate to the US in 1997 but that “SKOR stopped me”; that he left Korea because “[p]eople and organisations with power” had been “stalking” him since 1978 and intended to kill him; and that he had come to Australia because he was “refused entry to UK”. He also claimed that he was a victim of conspiracy and would be in “great personal danger” in Korea, that he would be “discriminated” against, would receive “ill treatment” for his “livelihood” and may be killed and that “[t]hey stalked me everyday and attack everything I do”.
The Tribunal set out the fact that the record of the airport interview also stated that the applicant claimed that he feared harm from the “Min Ja Yong Clique” which was said to be the “centre of Korean Nationalism” and that there was a “conspiracy between the state and government”, that he had “act[ed] alone in a pro Japanese political demonstration in Canada” and that the Korean Ministry of Foreign Affairs and a religious group wanted to take him back to Korea and had used their powers to “stop” his protection visa application. He was said to have claimed that his younger brother’s wife was attacked in 1995 when she was pregnant and that doctor in the Min Ja Yong group performed a caesarean and hysterectomy against her will but that doctors were protected by the government in Korea. The applicant also claimed that he had property in regional South Korea but that “some religious group ha[d] invaded that area”.
The Tribunal then summarised written material put before it in relation to the applicant’s application for review, including “a lengthy statement in support” that the Tribunal described as “very difficult to clearly understand”. It referred to claims in that statement about migration agent “forgeries” in the original protection visa application and claims that took issue with the delegate’s decision, including the delegate’s statement that the applicant had claimed that he would be harmed because he was a member of a particular named family. The applicant asserted that this was “wrong” and “that he did not discuss his own family’s link with one of the direct participants in the coup”, but had stated that his family “directly experienced for forming a special unit by the scheduled leaders of the coup d'état [pro-Japanese group] Kim Okkyun was killed by queen Min … But the linking truth of my own family origin has been as it stands with potential energy. Now it is unique linking truth of the early forming special unit [pro Japanese group] in 1884 against Korean Nationalism”. The Tribunal recorded that the applicant also claimed that Korean authorities had “watched his website”, had “let Canadian officers repatriate him in 2005” and had “tried to kill him” in 2006.
The Tribunal also described material and further written submissions from the applicant, including his claim in a document headed “A written Accusation” that “secret staff of KNIB [Korean KGB] at the Korean embassy resident in Australia”, the immigration officers and his migration agent were “criminal suspects”.
The Tribunal described country information about Korea and its human rights situation provided by the applicant and other submissions and documents provided, including after the matter was remitted.
The Tribunal observed that on 20 May 2009 the applicant had written to it asking that it send him a letter under s.424A of the Migration Act 1958 (Cth) seeking his “comments on some items arising on the Court Book & Submissions”. It referred to subsequent complaints the applicant had made about not receiving the original of the judgment and orders made by Scarlett FM and his contention that there was “a conspiracy in which [his] barrister and perhaps the Court [we]re involved”. Among other things, the Tribunal also outlined the applicant’s concern about Departmental discussions about his possible placement in a Community Detention Centre instead of Villawood Detention Centre.
As the Tribunal recorded, on 26 May 2009 the Tribunal had written to the applicant inviting him to attend a Tribunal hearing on 26 June 2009. Importantly, the Tribunal stated in that letter:
The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
It invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case, set out the date, time and location of the hearing and advised him that if he failed to attend the scheduled hearing “the Tribunal may make a decision without taking any further action to allow or enable you to appear before it”.
In response, the applicant completed a response to hearing invitation form in which he indicated that he would not take part in the scheduled Tribunal hearing. Beside the box that he had marked “No” on the form, he added the words “under 425(2)(b) of the Act” and also added the following at the bottom of the form:
<comment> Because of RRT’s avoiding credible information before it, refusing the applicant’s whole request relied upon RRT’s discretionary conduct, and being FMC’s error. Please do favourably.
The applicant provided a further submission to the Tribunal dated 28 May 2009 referring to the fact that he consented to the Tribunal making a decision under s.425(2)(b) of the Act and stating “[t]he full material written by this applicant and from the country of origin is substitutive (sic) for viva voce history examination vitiated all decisions before. Further, please keep s.414(1) of the Act for favourable fairness”.
The applicant did not appear before the Tribunal on the scheduled hearing date (26 June 2009). He provided a further completed response to hearing invitation form on 26 June 2009 marked “No” in relation to whether he would “take part in the Tribunal hearing” and the handwritten words “under s.425(2)(b) of the Act”, and sent a facsimile to the Tribunal on 10 July 2009 stating that he wanted to receive the decision by 18 July 2009.
The court book also contains a case note of a conversation between a Tribunal officer and an officer from the Villawood Detention Centre advising that the applicant had refused to attend the Tribunal hearing even though he had been informed “that it would be in his best interest to do so”.
In its decision the Tribunal also referred to the fact that on 9 July 2009 it wrote to the applicant noting that he had declined to attend the hearing. The Tribunal advised the applicant that before proceeding further on the information and evidence before it, the Tribunal wished to ensure that he had understood that he was entitled to request representation in relation to his current proceedings before the Tribunal. It explained the process of requesting representation and included relevant information. The Tribunal advised that while it was a matter for the applicant to decide whether he wished to request representation, it “may assist you to more clearly present your claims”. It also advised that if the applicant did not wish to request representation, the Tribunal would “proceed to finalise its decision on the basis of the evidence and information presently before it”.
On 10 July 2009 the applicant wrote to the Tribunal taking issue with the fact that the letter of 9 July 2009 was not a letter under s.424A of the Migration Act. He also claimed that he wanted to appeal to a higher court about the decision of Scarlett FM and that he wanted the Tribunal to make a decision. He also took issue with the conduct of his case manager and, in a facsimile of 20 July 2009, the fact that as a condition of placement in a community detention centre he was required to undergo what he described as a “MENTAL TEST”. He reiterated these concerns in further letters to the Tribunal.
In its reasons for decision the Tribunal set out this history and noted that the Tribunal as originally constituted had also invited the applicant to a hearing and to a rescheduled hearing and that the applicant had declined to attend unless certain conditions were met.
The Tribunal recorded that it had made enquiries with the Department “about whether the applicant had been medically assessed [while]…in detention, especially in relation to his mental health”. It had received the response that the applicant had been seen by the mental health team but did not want information disclosed and that although arrangements had been made for him to see a psychiatrist he had refused to do so.
In these circumstances, pursuant to s.426A of the Migration Act the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
In its findings and reasons the Tribunal stated the following:
Although the applicant’s claims about why he left his country and fears to return there are confused and difficult to understand as they are presented, as this Tribunal understands the applicant essentially claims that he left his country and cannot return there because he fears harm from a pro nationalist group, who are assisted by Korean authorities, including Korean security authorities and Korean intelligence authorities, because of his political opinion or imputed political opinion. He claims that Korean “group/state criminals” believe he has not quit his pro Japanese tendency and think he has incited the US and Japan against Korean nationalism. He also claims that he has suffered and fears racial crimes and discrimination against him. He claims that there was an attempt to kill him in “2006.10.8. (in the lunar calendar)” He claims he will be killed if he returns to Korea and cannot get protection from that harm from authorities in Korea because they consider he has pro Japanese tendencies and has demonstrated anti Korean nationalism. He also fears harm from “some religious group” and “the false religion body in the village which this applicant’s ancestor built”.
The Tribunal referred to the fact that a decision-maker was not required to make an applicant’s case for him or to accept uncritically any and all allegations made by an applicant.
The Tribunal accepted that independent country information and historical information submitted by the applicant was “reliable evidence of the matters that information addresses”, but went on to point out that it “must determine whether the applicant before it ha[d] a genuine fear founded upon a real chance of persecution for a Convention reason”.
The Tribunal continued:
The applicant’s claims are assertions by him about what happened to him in Korea and what will happen to him if he returns. He has sent voluminous materials and information to both the delegate and Tribunal in support of his claims but much of it is confused in its sense, is difficult to understand and the provenance of some of the documents provided is unclear. The Tribunal therefore cannot be satisfied that the materials and information provided by the applicant supports the assertions that he has made about why he left his country and cannot or will not return there. The Tribunal has given the applicant the opportunity to attend the Tribunal and present his arguments and clarify his claims but he has declined that opportunity. He also declined the opportunity to obtain representation to help him present his claims more clearly to the present Tribunal. The Tribunal has done its best to distil the applicant’s claims from the materials, information and submissions he has made and sent the Tribunal but the Tribunal is not satisfied from the materials, information and documents he has produced in support of his claims that there is a real chance that he will face harm in his country for a Convention reason now or in the reasonably foreseeable future if he returns to Korea for any of the reasons that he has claimed.
On the evidence before it the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm for the purposes of the Convention either now or in the reasonably foreseeable future if he returned to Korea and was not satisfied that the applicant had a well-founded fear of persecution with the meaning of the Refugees Convention.
Reasons for non-appearance
The applicant, who was and is in Villawood Detention Centre, attended a directions hearing in these proceedings on 17 September 2009. There is no evidence that he was not aware of the date fixed for the hearing. When the matter came before the court for hearing on 22 October 2009 the applicant did not appear. On that day counsel for the first respondent tendered an email from the Immigration Detention Centre advising that the applicant had refused to attend the hearing. That email is now an annexure to the affidavit of Jaimee Dinihan sworn on 25 January 2010. There was also evidence before the court of a letter sent by facsimile to the applicant from the solicitors for the first respondent enclosing a copy of the outline of written submissions that also advised him that if he did not attend the hearing on 22 October 2009 either in person or by legal representative the solicitors for the first respondent were instructed to seek to have the matter dismissed with costs.
The applicant’s reasons for non-appearance on 22 October 2009 are not easy to discern. In his affidavit in support of the application filed on 7 January 2010 (which the applicant accepted should be viewed in large part as submissions), he contended that this court was “forcing a damaging statement in the course of filing of “Complete Paragraphs by Correction” about the amended application 118 (p66 – 56) considered to be dispositive for the last hearing on 22nd Oct. 2009”.
The amended application filed on 9 September 2009 contains at page 66 – 56 extracts from the judgment of Gleeson CJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [34] – [36] and [43] in relation to the Tribunal’s obligation to identify determinative issues. Following this, the amended application states “[t]herefore, the Minister’s contention should be properly dismissed.” The applicant’s complaint in this respect does not in any way explain his failure to appear on 22 October 2009.
In his affidavit in support of his reinstatement application the applicant also contended that: “While this case in Australia is proceeding working together and of international dishonesty, the second Tribunal’s citing authorities was unusual even probably dangerous, which its decision was vitiated by the first Federal Magistrates Court’s biased prejudgment”.
It appears that the applicant takes issue with aspects of the decision of Scarlett FM, notwithstanding that his Honour remitted the matter to the Tribunal for reconsideration. This may reflect the applicant’s disagreement with that part of his Honour’s judgment that rejected the grounds relied on by the applicant in relation to the first Tribunal decision (other than the ground on which he succeeded) (see SZNFE at [83]). It may also relate to the fact that Scarlett FM prefaced his conclusions in this respect by stating (at [83]): “The Tribunal was sorely-tried by the applicant’s unreasonable behaviour but went to a considerable degree of effort to accord him procedural fairness”.
The applicant complained of bias on the part of Scarlett FM or that his Honour’s decision gave rise to an apprehension of bias. I endeavoured to explain to the applicant that he could not appeal from or otherwise seek review of a decision of the Federal Magistrates Court in the Federal Magistrates Court. In any event the applicant’s allegations of bias on the part of Scarlett FM do not provide a reasonable explanation for his failure to appear on 22 October 2009.
The applicant also contended that the second Tribunal decision was affected by the approach taken by Scarlett FM, in that the second Tribunal’s decision was said to be “vitiated” by “the first Federal Magistrates Court’s biased prejudgment”. Even if the applicant has such a concern it does not provide a reasonable explanation for his failure to appear in this court on 22 October 2009.
It was also contended that the “purported” second Tribunal decision “implies a real risk which it, if performed, exceeds its powers and function with relation to the applicant’s privacy”. This contention appears to be made on the basis that after the applicant informed the Tribunal as reconstituted that he would not attend the hearing to which he had been invited, the Tribunal (as it recorded at paragraph 44 of its decision) made inquiries of the Department about whether the applicant had been medically assessed at any time while he had been in detention, especially in relation to his mental health, and commented on the results of such inquiries.
The Tribunal made these comments as part of its consideration of whether it should exercise its discretion under s.426A of Act to make a decision on the review without taking any further action to enable the applicant to appear before it. The applicant’s concern about the conduct of the Tribunal does not establish a reasonable explanation for the applicant’s failure to appear before the court on 22 October 2009.
In his affidavit of 7 January 2010 the applicant then stated “[t]he second Magistrate, his (sic) Honour Barnes FM at the first (sic) hearing suggested that present proceeding would be based on the first decision which is worthless for one of authorities rather than on the lengthy present application of the applicant”. It is not clear what this is intended to convey. The first hearing conducted by me in relation to this applicant was on 22 October 2009. The applicant did not attend on that day and the matter was dismissed for non-appearance. No such “suggest[ion]” was made on that occasion (see SZNFE v Minister for Immigration & Anor [2009] FMCA 1058). Even if this is intended to refer to the applicant’s understanding of what occurred at the directions hearing conducted by a registrar, it does not explain his non-appearance on 22 October 2009. The applicant was given the opportunity to make extensive oral submissions in relation to his reasons for non-appearance. He did not elaborate on or clarify this aspect of his concerns. It does not provide a satisfactory explanation for his non-appearance on 22 October 2009.
In paragraph five of his affidavit of 7 January 2010, the applicant contended that the Federal Magistrates Court had “been supporting the Tribunal’s failure of law – application in the way of amending the Migration Act (esp. S 420) which is the general provision of the Div 4 of Pt 7 of the Migration Act on the first decision at par [80]. It’s working together”. Insofar as this takes issue with the decision of Scarlett FM it does not provide any reasonable basis for the applicant’s failure to appear at the hearing of 22 October 2009.
The applicant then contended that “the second Magistrate…seems likely to be heavily burdened with the lengthy claims of application”, suggested that the claim had been “confronted by circular proceedings between RRT and FMC” and that he was concerned that the Federal Magistrates Court “have habitually, persistently and without reasonable another worthless decision – making instituted other vexatious, dangerous proceedings” so that it would be “inadequate for any Magistrate to ordinarily make a decision or orders” on this application and that he claimed the “total prejudgments including the first FMC’s decision”. The applicant went on to suggest that it was therefore necessary for the present proceedings to be transferred to the Federal Court. If the concern about “circular proceedings” takes issue with the fact that Scarlett FM remitted the matter to the Tribunal this is not a reasonable explanation for the applicant’s failure to appear on 22 October 2009.
As indicated, the question of transfer to the Federal Court will not be determined unless the matter is reinstated. Insofar as the applicant’s claim is that bias or apprehended bias on the part of Scarlett FM in some way means that a decision should not be made by any other Federal Magistrate, I am not persuaded that this provides a proper reason for his failure to appear on 22 October 2009. Had he wished to make such a submission he could have done so had he appeared on 22 October 2009. The matters raised by the applicant in relation to or associated with the prior proceedings in this court do not provide a reasonable explanation for his non-appearance on 22 October 2009.
The applicant then contended in his affidavit:
Dismissed without leave on 22nd October 2009: There was essentially no leave (Justice’s no signature) of the application for TRANSFER OF PROCEEDINGS not served dissimilarly with the original application granted leave (Jutice’s (sic) signature) served for final hearing and with the first respondent’s submission [FIRST RESPONDENT’S OUTLINE OF SUBMISSION] granted leave (Justice’s signature) served for final hearing.
Further, the first respondent’s submission did not retain a list of authority and granted leave on 19th October 2009 expired 3 days after the date on the SHORT MINUTES OF ORDER corrected at the direction. The Court made the applicant confused for issue of the final hearing on 22nd October 2009.
I am not satisfied that these claims establish any confusion on the part of the applicant as to the date of final hearing or otherwise provide an explanation for his failure to appear on 22 October 2009.
The last paragraph of the affidavit of 7 January 2010, as explained in oral submissions, contains what I understand to be the essence of the applicant’s explanation for his failure to appear. That is that “the applicant could not believe the Court’s view on the first decision on 7th May 2009 which was one of the bases of no appearance on 22nd October 2009.” From this it appears that the applicant decided in advance that he did not want the review of the second Tribunal decision to be conducted by the Federal Magistrates Court because he was not happy with the approach taken by Scarlett FM. He told the court in oral submissions that he thought that as he did not appear on 22 October 2009 he would be able to appeal to the Federal Court. He tendered copies of letters from the registry of the Federal Court dated 17 November 2009 and 6 January 2010. The first of those letters referred to the fact that on “several occasions” since 9 November 2009 the registry had received by facsimile a purported application for leave to appeal and an affidavit with multiple annexures, but explained to the applicant that as his matter in the Federal Magistrates Court had been dismissed due to his failure to appear in court on 22 October 2009 it was inappropriate that he make an application to the Federal Court. It was suggested that he might file an application in a case and supporting affidavit in this court. The same point was made in stronger terms on 6 January 2010 in response to a further facsimile from the applicant received by the Federal Court registry on 5 January 2010.
In addition, the applicant tendered a copy of a letter from the registry of the High Court of Australia dated 7 December 2009 referring to several documents the registry had received by facsimile in both the Sydney and Canberra registries of the High Court. The registry explained that an application for special leave to appeal may only be filed in the High Court from a decision of a Federal Court exercising appellate jurisdiction and attached a copy of the letter from the Federal Court Registry of 17 November 2009 suggesting that the applicant may be able to pursue an application in the Federal Magistrates Court. It also explained that the High Court did not accept documents for filing by facsimile.
I am not persuaded that the applicant’s view of this court, whether based on his dissatisfaction with the decision of Scarlett FM (notwithstanding that he was successful in those proceedings), or otherwise, is such as to constitute a reasonable explanation for his failure to appear on 22 October 2009. He had made an application for transfer to the Federal Court. Had he wished to make submissions about the complexity of his matter or any other issues relevant to transfer he would have had the opportunity to do so had he appeared on 22 October 2009. A desire to bypass the Federal Magistrates Court, notwithstanding that under the Migration Act this court has original jurisdiction to hear applications for review of decisions of the Refugee Review Tribunal, is not of itself a satisfactory explanation for non-appearance.
I accept however that the applicant, who is self-represented and appears to labour under considerable misconceptions about the need to attend both Tribunal and Court hearings, in all the circumstances honestly, albeit mistakenly, formed the view that if he failed to appear at the hearing in this court he would have a right of appeal to the Federal Court which would then determine the substance of his review application. This does not of itself warrant setting aside the orders made in his absence.
I note that the Tribunal decision raises (but does not resolve) an issue about the applicant’s mental health. There is no evidence about the applicant’s mental health before the court except in the court book and the Tribunal’s remarks in its reasons for decision. The applicant appeared able to conduct his case before me. However in the particular and unusual circumstances of this case I am of the view that in determining whether it is in the interests of justice to set aside the orders made on 22 October 2009, what is critical is whether there is an arguable case in relation to review of the Tribunal decision.
Whether there is an arguable jurisdictional error
The applicant made extensive written and oral submissions in relation to these issues. While he speaks English, a Korean/English interpreter was provided for his assistance in the hearing. As he did not finish his lengthy oral submissions on the first hearing date, the hearing was adjourned to enable this to occur (again with the assistance of an interpreter). The basis for the applicant’s contention of jurisdictional error on the part of the Tribunal as reconstituted has been elaborated on at length. I consider that it is proper to have regard to the applicant’s most recent attempt to elucidate grounds for review of the Tribunal decision in the document described as “affidavit (8)”, which contains a proposed amended application with extensive submissions, as well as the document headed “New Issues” or “Amended Submission” filed by the applicant and the “Last Submission After Hearing” filed on 19 March 2010 and not to confine my consideration to the grounds raised in his original application of 2 September 2009 or amended application of 9 September 2009. However, for the reasons given below, I am not persuaded that any arguable case of jurisdictional error on the part of the Tribunal as reconstituted has been established. Hence it would be futile and thus not in the interests of justice to reinstate the application for review of the Tribunal decision.
I note first that the applicant’s most recent “ammended (sic) application” (in “Affidavit (8)”) filed on 25 January 2010 is expressed as seeking review of the decisions of the second Tribunal and of Scarlett FM as well as seeking to set aside the order made on 22 October 2009. The amended application sets out background details and takes issue with aspects of the decisions of the delegate, the first Tribunal and Scarlett FM as well as the Tribunal as reconstituted. However, insofar as the applicant takes issue with aspects of the delegate’s decision, the first Tribunal decision or the judgment of Scarlett FM, these contentions do not establish any arguable case of jurisdictional error on the part of the Tribunal as reconstituted or any basis on which the application of 2 September 2009 should be reinstated.
The applicant took issue with the orders of 22 October 2009. Insofar as he appeared to do so on the basis that his understanding was that the application was dismissed on the basis of a rejection of the merits of his application for transfer of the proceedings to the Federal Court, that was not the case. The merits of the application to transfer the matter to the Federal Court were not considered on 22 October 2009. Both that application and the substantive application for review of the second Tribunal decision were dismissed by reason of the applicant’s non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules.
In the latest amended application the applicant outlined a number of concerns about the second Tribunal decision (in particular in paragraphs [42] – [78] which he set out). The amended application also contains and addresses five specific grounds of review. These are that the second Tribunal:
1.failed to apply s.91S of the Migration Act;
2.failed to comply with s.424A and misconstrued s.189(2) of the Act;
3.failed to comply with s.424 of the Act;
4.failed “to properly consider” the applicant’s claims and therefore failed to comply with its obligations pursuant to s.414 under s.415 of the Act; and
5.failed “to set out findings on material questions of facts as required by s.430 of the Act” and failed “to deal with some particular aspect” of the claim revealing reviewable error for the purposes of s.476(3)(e) of the Act.
I have considered those aspects of the amended application that relate to the decision and procedures of the Tribunal as reconstituted, as well as other relevant issues raised by the applicant orally and in writing and the other material before the court in relation to whether the Tribunal as reconstituted arguably fell into jurisdictional error.
It is convenient to consider the five grounds expressly relied on by the applicant and broader issues raised by the applicant under or in association with each of those grounds. In addition I have considered issues raised or apparent in relation to s.425 and s.426A of the Migration Act as well as contentions about bias, bad faith and a lack of procedural fairness.
Section 91S and whether the Tribunal carried out its obligations under s.65 of the Act
The applicant contended that the Tribunal as reconstituted failed to apply s.91S of the Migration Act. That section requires the Tribunal to disregard any fear of persecution in certain circumstances where a claim is based on membership of a particular social group that consists of a person’s family. It appears that the applicant’s argument is that the Tribunal should have understood that his claim was (at least in part) based on membership of his “particularly unique” family and it should have gone on to make findings of fact, including consideration of s.91S of the Act.
The applicant contended that the failure by the Tribunal to consider and determine his claims in relation to membership of a particular social group was a “fundamental error of law” demonstrating that “the essential issue for determination by the [Tribunal] ha[d] not been considered”, so that it was “not possible for the RRT achieve the state of satisfaction required by s.65 of the Act in refusing the visa application”. On this basis it was contended that the Tribunal “contravened s.91S and thereby erred in law”.
The contention that the Tribunal erred in failing to address s.91S of the Act is not made out. While, as stated in STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 485; [2006] HCA 61 (at [29]), s.91S requires the decision-maker to consider certain issues before determining that it must disregard an applicant’s fear of persecution, this is not a case in which the Tribunal purported to apply s.91S. Nor was it obliged to do so. As the Tribunal stated, it was not able on the material before it to be satisfied that the materials and information provided by the applicant supported the assertions he made about why he had left his country and could not or would not return there. In those circumstances it was clearly not required to go on to consider the possible application of s.91S of the Migration Act and whether it should disregard certain kinds of fear of persecution.
As set out above, the Tribunal described the difficulty it faced in understanding the applicant’s claims on the written material he had provided. In relation to the “voluminous” materials and information provided to the delegate and Tribunal, the Tribunal found that “much of it is confused in its sense, is difficult to understand and the provenance of some of the documents provided is unclear”. Such findings were open to the Tribunal on the material before it, notwithstanding that the applicant is clearly of the view that the written material he provided established his claims. Thus it was also open to the Tribunal to go on to conclude that it could not be satisfied that the material and information provided by the applicant supported the assertions he had made about why he left the country or would not return there.
The Tribunal did not perform its fact finding function in a manner indicative of jurisdictional error. Critically, the Tribunal pointed out that it had given the applicant the opportunity to attend a hearing to present arguments and to “clarify his claims”, but that he “declined that opportunity” as well as the proffered “opportunity to obtain representation to help him present his claims more clearly”. The Tribunal concluded that it was not satisfied that the applicant met the criteria for a protection visa after setting out its understanding of the applicant’s claims about why he left his country and feared to return, albeit it found such claims “confused and difficult to understand as they are presented”. Having attempted to “distil” the applicant’s claims from the material, information and written submissions he had provided, the Tribunal was however “not satisfied” on the evidence before it that there was a real chance that the applicant would suffer harm in Korea for a Convention reason now or in the reasonably foreseeable future for any of the reasons claimed.
The applicant contended that the Tribunal’s failure to consider and determine his claims in relation to a particular social group meant that it was not possible for the Tribunal to achieve a state of satisfaction required by s.65 of the Act in refusing the visa application. However s.65 provides that if “[a]fter considering a valid application for a visa the [decision-maker]” is satisfied that the criteria has been satisfied it is to grant the visa or, relevantly, “if not so satisfied, is to refuse to grant the visa”. In this case on the material before it the Tribunal found that it was not so satisfied. It was not required to reach a positive state of satisfaction to refuse the visa application in the manner contended for by the applicant.
Such an approach is consistent with what was said by the Full Court of the Federal Court stated in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (at [17]):
We are unable to agree with his Honour’s statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
"It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."
The Tribunal correctly approached its task given that it was not affirmatively satisfied on the material before it that the criteria for a protection visa had been satisfied. No lack of logic, let alone a lack of logic indicative of jurisdictional error is apparent in its approach. In these circumstances no arguable jurisdictional error of the nature contended for in ground one or more generally based on the Tribunal’s failure to make findings either accepting or rejecting the applicant’s claims is apparent.
Section 424A
The applicant made a number of contentions about s.424A of the Act and the Tribunal’s obligation to give him particulars of any information it considered would be the reason, or a part of the reason, for affirming the decision under review. I have also considered the application of s.424A more generally.
First, the applicant claimed the Tribunal sent him an “incomplete s.424A letter” on 9 July 2009. This was the letter advising the applicant that he was entitled to request representation. This claim was reiterated in the submission filed on 19 March 2010 and addressed in oral submissions on 23 March 2010. However, first, this letter was not a letter under s.424A of the Act. The fact that the Tribunal wrote to the applicant in relation to the possibility that he might obtain representation does not mean that that letter should be regarded as an incomplete or inadequate s.424A letter. It did not purport to be a s.424A letter. It was clearly said to be in relation to “important information” and brought to the applicant’s attention the possibility of the applicant obtaining immigration assistance.
The applicant appeared to contend that the Tribunal was obliged to put to him in accordance with s.424A of the Act the issue of the availability of representation and/or the fact that he declined the opportunity to obtain representation to help him present his claims more clearly, on the basis that this issue was referred to in the Tribunal’s findings and reasons and this was a part of the reason for affirming the decision under review.
However not everything that appears in the findings and reasons is a part of the reasons for affirming the decision under review. In this case the reference to the declined offer of representation was simply part of the Tribunal’s description of the opportunity afforded to the applicant to present arguments and clarify his claim and not part of the reason for affirming the decision under review in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26.
The Tribunal’s offer of representation was not “information” within s.424A(1) so that the letter had to conform with the requirements of s.424A and the fact that the applicant declined representation was not material that in its terms contained a “rejection, denial or undermining” of the applicant’s claims to be a refugee (see SZBYR at [17]). In any event, if contrary to my view the applicant’s response to the offer of representation was information that would be the reason or part of the reason for affirming the decision under review it would be within the s.424A(3)(b) exception.
It also appeared that the applicant contended that the Tribunal was obliged to put to him under s.424A the results of its inquiries of the Department about whether he had been medically assessed when in detention. However such information, while referred to in the context of the Tribunal’s decision under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, was not information that would be part of the reason for affirming the decision under review (see Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31 at [24] – [26]).
The applicant also contended that the Tribunal was obliged to put to him a copy of the record of his airport interview and ask him to comment on it as the Tribunal relied in part on the contents of that interview in affirming the delegate’s decision.
However, while in its description of the applicant’s claims and evidence the Tribunal as reconstituted referred to the fact of an airport interview (and, indeed also to a record of interview with the delegate), in particular in describing the applicant’s claims and history before coming to Australia, neither of these matters constitute information that the Tribunal considered would be the reason or part of the reasons for affirming the decision under review within s.424A(1). First, the information in such interviews was not information which in its terms contained a rejection, denial or undermining of the applicant’s claims (see SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). As was stated in SZBYR (at [17]) in relation to the contents of a statutory declaration:
[T]he appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Nor was there reliance by the Tribunal on such information in the findings and reasons part of its decision such as to support any inference that the Tribunal considered any information given by the applicant in the airport interview or in the Departmental interview would be part of the reason for affirming the decision under review (see SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 and SZMNPv Minister for Immigration and Citizenship [2009] FCA 596).
The applicant submitted generally that there was sufficient information to which the Tribunal had regard to enliven its obligations under s.424A of the Act. Insofar as the applicant contended that the Tribunal was obliged to inform him that the veracity of his claims was under question, the Tribunal is not obliged under s.424A to put its “subjective appraisals, thought processes or determinations” to the applicant (see SZBYR at [18]). Moreover, the applicant failed not because the Tribunal as reconstituted disbelieved his claims but because of its lack of affirmative satisfaction as discussed above. I note also that independent country information and information the applicant gave for the purposes of the application for review or during the process that lead to the decision under review is outside the scope of s.424A(1) by virtue of s.424A(3) of the Act.
No arguable failure to comply with s.424A of the Act is apparent.
Under ground two the applicant also contended that s.189(2) of the Act (in relation to detention of unlawful non-citizens) had been misconstrued by Departmental officers and that he should be released from Villawood Detention Centre. These issues do not go to show any arguable jurisdictional error on the part of the Tribunal as reconstituted.
Section 424 of the Act
The applicant submitted that the Tribunal erred in failing to seek credible independent information under s.424 of the Act (for example as to the availability of effective state protection in Korea).
In connection with this ground the applicant also contended that the Tribunal’s finding about his claims being “assertions” was a “pattern” which seemed to follow from the decision of Scarlett FM and that it was unfair to the applicant for the Tribunal “to act on some unverified suspicion when means of verification or otherwise were readily at hand”.
It is well-established that it is for the applicant “to advance whatever evidence or argument [he] wishes to advance in support of [the] contention that [he] has a well-founded fear of persecution for a Convention reason” and “[t]he Tribunal must then decided whether that claim is made out” (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ). This is not a case in which it is arguable that the Tribunal was under a duty to make inquiries or to seek additional evidence (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). In particular the Tribunal was not obliged to obtain “verification” of the independent country information provided by the applicant in relation to the situation in Korea. In any event, the Tribunal accepted that the independent country information and historical information that the applicant submitted was “reliable evidence of the matters that information addresses” and the Tribunal decision did not turn on the availability or adequacy of State protection. No arguable breach of s.424 is apparent.
Nor was it necessary for the Tribunal to set out its findings in relation to the applicant’s credibility as contended. No adverse credibility finding was made by the Tribunal. Rather, it was not satisfied on the material before it that the materials and information provided by the applicant supported the assertions he made about why he left the country and could not or would not return.
This ground also took issue with the Tribunal’s view that the provenance of some of the documents submitted by the applicant was unclear. This was, however, a finding that was open to the Tribunal on the material before it. Insofar as the applicant seeks merits review, merits review is not available in this court.
Moreover, the material before the court is not such as to establish an arguable case that the Tribunal’s failure to be satisfied that the applicant met the criteria for the visa involved unreasonableness, let alone unreasonableness such as to constitute jurisdictional error. As the Full Court of the Federal Court stated in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 at [27]:
For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.
(See also NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 at [6] – [7]).
Whether Tribunal failed to properly consider the applicant’s claims as required by ss.414 and 415 of the Act
Under s.414 of the Act the Tribunal must review the delegate’s decision. The applicant contended that the Tribunal failed to conduct a review as required by s.414 because it failed to address expressly and make findings on particular aspects of his claims and submissions. Insofar as this ground involves a contention that the Tribunal should have accepted the applicant’s claims it seeks impermissible merits review. As set out above, the Tribunal considered the applicant’s claims in writing, but found them “confused and difficult to understand as they are presented”. It nonetheless attempted to “distil” his claims from the material before it, notwithstanding the volume of that material and the fact that the provenance of certain documents was unclear to the Tribunal. It was open to the Tribunal on the material before it not to be satisfied that the material before it supported the assertions the applicant made about why he left his country and could not or would not return and also for the Tribunal not to be satisfied on the material before it that the applicant had a well-founded fear of persecution for a Convention reason.
As discussed, the Tribunal advised the applicant that it was unable to make a favourable decision on the information before it and invited him to attend a hearing to give evidence and present arguments relating to the issues arising in his case. Had he done so he would have had the opportunity to clarify his claims. When he failed to attend the hearing however, as stated in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5], the “inevitable consequence was the rejection of his application”.
In these circumstances it was not necessary for the Tribunal to grapple with particular aspects of the applicant’s written claims in the manner contended for by him. No arguable case of jurisdictional error is established on this basis.
It was also contended that the Tribunal should have made inquiries of its own to determine the credibility of the applicant’s written claims, what he was “actually postulating” and his genuineness. As set out above, the Tribunal was not obliged to make inquiries in this case.
This claim may be intended to be a contention that the Tribunal failed to consider an integer of the applicant’s claims in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (at [56]). The applicant’s submissions raised an argument that the Tribunal failed to consider his claim to fear persecution for reasons of membership of a particular social group consisting of his family (as well as based on his political opinion or imputed political opinion).
However I am not persuaded that there is an arguable case that the Tribunal failed to have regard to an integer of the applicant’s claims in a manner constituting jurisdictional error. While the Tribunal did not make express reference to a claim based on membership of a particular social group consisting of the applicant’s family in the findings and reasons part of its decision, it is clear from its summary of the applicant’s claims that it understood that in his original application for a protection visa the applicant claimed specifically to have suffered because “of my family background because my family was associated with the Korean monarchy” and that he believed that he would continue to face discrimination and may be killed if he returned to Korea. It was also aware that he subsequently advised the Department that this part of his application “was false” and provided a fresh statement, (which the Tribunal described), including a reference to the applicant’s family/ancestral background going back to “the Coup d’tat power in 1884” and claims about the basis for his fears in Korea, in particular based on his perceived pro-Japanese tendencies.
While in these proceedings the applicant pointed to places in the voluminous materials before the Tribunal in which he outlined his family history, the Tribunal is “not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it” (see NABE at [60]). The material before the court is not such as to demonstrate an arguable case that the Tribunal failed to make a finding on “a substantial, clearly articulated argument relying upon established facts” as considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] or that it failed to consider a case raised “squarely” on the material before it in the sense considered in NABE at [55] – [62].
Notwithstanding the applicant’s view to the contrary, it was open to the Tribunal to find that the applicant’s claims about why he left his country and feared to return were confused and difficult to understand. In that context and having regard to the applicant’s express denial of the simply expressed claim in the original protection visa application in relation to his family background as well as the nature and content of the documents thereafter provided, it was open to the Tribunal not to be satisfied on the material before it that the material and information provided by the applicant supported the assertions he had made about why he left country and could not or would not return there or that the applicant had a well-founded fear of persecution for a Convention reason. The applicant had the opportunity to attend a Tribunal hearing at which he could have clarified his claims. He did not do so. No failure to have regard to relevant considerations is arguable on the material before the court.
Insofar as the applicant took issue with the fact that the Tribunal did not expressly refer to every item of material he provided (or to specific items) the Tribunal is under no such obligation. The applicant’s contention that the Tribunal failed to consider his submissions is not indicative of arguable jurisdictional error. Nor, more generally, is there an arguable case that the Tribunal failed to exercise its jurisdiction based on the concerns expressed by the applicant.
Sections 430 and former section 476(3)(e)
The reference to s.476(3)(e) in the proposed amended application appears to be a reference to a repealed provision of the Migration Act which provided that the ground of judicial review in repealed s.476(1)(d) (that the decision was an improper exercise of the power conferred by the Act or Regulations) was to be construed as a reference inter alia, to failing to take a relevant consideration into account in the exercise of a power.
In any event, the Tribunal did not fail to set out its findings on any material questions of fact as required by s.430 (let alone do so in a manner demonstrating jurisdiction error). The reasons are not so defective as to demonstrate that no review in truth occurred (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [119]) given the basis for the Tribunal’s lack of satisfaction discussed above.
Moreover, as indicated above, it has not been established that it is arguable that the Tribunal failed to consider an integer of the applicant’s claims or to have regard to a relevant consideration in a manner constituting jurisdictional error (see Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 and Yusuf).
Further, while the applicant provided an explanation in his amended application and in oral submissions as to his claims and the manner in which aspects of his claims were said to be established by the material he provided to the Tribunal this is not such as to establish that the Tribunal made (or arguably made) an error of fact by misunderstanding or misconstruing a claim advanced by him or that it based its decision in whole or in part upon such a misunderstood claim.
The applicant also contended that the Tribunal failed to consider the totality of the circumstances (see WAFH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 429) and failed to consider relevant material and relied on irrelevant materials, apparently on the basis that the documents he put before it should have satisfied the Tribunal of his claims. He referred to particular aspects of his claims and contended that they were not unclear or difficult to understand. Having regard to the nature of the Tribunal review and its decision these contentions do not establish any arguable case of jurisdictional error, but seek impermissible merits review. Given that the Tribunal could not establish the precise nature of the applicant’s claims and the relevant facts on the material before it, it was not obliged to assess the possibilities of future persecution in the manner contended for by the applicant.
Sections 425 and 426A
While s.425 was not raised as a discrete ground of review, the amended application raised the issue of the Tribunal’s “‘purported procedural fairness’ by s.425”. I have also considered the Tribunal’s exercise of its discretion under s.426A of the Act.
In one sense the applicant’s contention that the Tribunal’s decision was affected by bias or that the Tribunal acted in bad faith and did not accord the applicant procedural fairness because it was not open to persuasion appears to reflect his central contention that the Tribunal in some way erred by not making a favourable decision on the written material before it. The applicant is of the view that there was sufficient material before the Tribunal for it to make a favourable decision. Indeed, it appears that he may mistakenly see the review process as primarily a documentary process.
Section 425(1) of the Act is as follows:
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.
In this case it is clear that the Tribunal as reconstituted invited the applicant to attend a hearing by letter of 26 May 2009. No issue is apparent on the material before the court in relation to the form or content of this letter. Importantly, the Tribunal advised the applicant as follows:
The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
It also advised that if the applicant did not attend the hearing the Tribunal may make a decision without taking further action to allow him to appear before it.
Notwithstanding this advice (and I note that the applicant both speaks and reads English), the applicant declined the hearing invitation. On the response to hearing form the applicant indicated that he would not take part in the Tribunal hearing, adding the words “under 425(2)(b) of the Act”.
In other words the applicant consented to the Tribunal deciding the review without him appearing before it, although it appears from his addition of the somewhat confusing “<comment>”: “Because of RRT’s avoiding credible information before it, refusing the applicant’s whole request relied upon RRT’s discretionary conduct, and being FMC’s error. Please do favourably”, that he anticipated the possibility of a favourable decision, notwithstanding the Tribunal’s advice in the hearing invitation letter that it was unable to make a favourable decision on the material before it.
However the fact that the applicant consented to the Tribunal deciding the review under s.425(2)(b) does not mean that the Tribunal could not proceed unless it made a favourable decision (insofar as this may be suggested).
The Tribunal had the written claims and other material submitted by the applicant before it. It invited him to a hearing because, as it advised him, it was not satisfied on the written material that it was able to make a favourable decision (see NAST at [7]). Hence, as the applicant did not appear at the scheduled hearing, under s.426A the Tribunal was empowered to make a decision on the review without taking any further action to allow the applicant to appear before it.
While it is open to a Tribunal to determine a decision in favour of an applicant on the basis of written material, the fact that the Tribunal was not so persuaded is not such as to establish jurisdictional error or more generally that the Tribunal erred in the exercise of its discretion under s.426A of the Act when it decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The applicant had given a clear indication that he did not wish to appear. Despite this, the Tribunal made a subsequent unsuccessful attempt to suggest to the applicant that he might be assisted by legal representation. It also made inquiries in relation to his mental state. The applicant had also rejected the hearing invitation from the first Tribunal. The Tribunal as reconstituted considered whether it should proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It has not been established that there is an arguable case of jurisdictional error in the manner in which it exercised its discretion under s.426A of the Act. In particular, this is not a case in which it can be said that the Tribunal acted unreasonably in the exercise of its discretion.
Nor is the evidence before the court such as to suggest that the applicant was unfit to appear before the Tribunal or that the Tribunal should have made further enquires in that respect (cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 and see MZXTA v Minister for Immigration and Citizenship and Another (2009) 112 ALD 89; [2009] FCA 1186). As in MZXTA, there is nothing in the material before the court to suggest that any “obligation or discretion that the Tribunal was under, or able to exercise, in respect of ss 424A, 425 or 426A was not discharged or properly exercised” (at [30]).
The fact that the applicant considered that he should have succeeded in his review application on the basis of his written claims is not such as to establish that there was any miscarriage of the discretion in s.426A of the Act. As discussed above, it was open to the Tribunal to take the view that it did on the material before it. It has not been established that there is any arguable case that it misdirected itself, failed to take into account a relevant consideration or acted in a “capricious or unreasonable manner” (MZXTA at [32]) in the exercise of its discretion under s.426A. Nor can it be said that the exercise of the discretion or the subsequent decision was “unreasonable” in a Wednesbury sense (see Minister for Immigration and Citizenship v Leand Others (2007) 164 FCR 151; [2007] FCA 1318 and NAOX and Another v Minister for Immigration & Citizenshipand Another (2009) 112 ALD 54; [2009] FCA 1056).
The applicant’s contention that there was sufficient information for the Tribunal to make a favourable decision seeks impermissible merits review. Insofar as he submitted that he should have been informed that the veracity of his claims was under question he was informed that the Tribunal was unable to make a favourable decision on the information before it. As stated above the Tribunal was not obliged to put its provisional reasoning to the applicant (see SZBYR).
Nor is it apparent that there is any arguable case that (as the applicant contended) the invitation contemplated by s.425 was in any way “a hollow shell” or “an empty gesture”. The applicant seemed to contend that this was the case because “the Tribunal was able to form a favourable opinion that the review should succeed with the submissions before it” and “without the necessity for an oral hearing”. However this seeks merits review and does not establish jurisdictional error.
No arguable lack of procedural fairness been established in the circumstances of this case based on the manner in which the Tribunal proceeded. In particular, unless there was information within s.424A of the Act, the Tribunal was not obliged to seek the applicant’s comments under that section in the absence of a hearing. Nor, as stated above, was it obliged to obtain additional information as appears to be contended. Insofar as it seems to be submitted that the Tribunal should have established the applicant’s claims by making further inquiries and obtaining further information, this is not a case in which there can be said to be a duty to inquire in the sense considered in SZIAI.
None of the authorities cited by the applicant or the contentions made in relation to s.425 establish that there is an arguable breach of that section arising out of the manner in which the Tribunal proceeded in circumstances where it invited the applicant to a hearing (see SZHKA and Another v Minister for Immigration and Citizenship and Another (2008) 172 FCR 1; [2008] FCAFC 138) and where it properly exercised its discretion under s.426A of the Act. Nor is any such breach apparent on the material before the court.
Insofar as the applicant reiterated his contention that the Tribunal had enough information or should have made sure it had enough information to decide the application in his favour without needing to conduct a hearing, this does not establish jurisdictional error. Moreover, given that the applicant did not attend the Tribunal hearing, the remarks of the High Court in SZBEL about the obligations of the Tribunal during such a hearing do not assist the applicant.
Bias, good faith and procedural fairness
The applicant contended that the Tribunal procedures and decision involved bias, a lack of good faith and of procedural fairness. Aspects of these claims are discussed above.
In relation to the claim of bias, it is well established that it is only in a “rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal” (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17] and cases cited therein). This is not such a case. The fact that the Tribunal proceeded as it did, its statement that it had “done its best to distil the applicant’s claims from the materials, information and submissions” and the fact that it found much of the applicant’s material to be “confused in its sense”, “difficult to understand” and “unclear” is not indicative of actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 or apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28. As Sundberg J pointed out in Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 at [13], the hypothetical fair-minded and informed person from whose perspective an apprehension of bias is assessed:
… would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant.
As his Honour continued: “Such a preliminary view does not establish apprehended bias”. More generally, there is nothing that is arguably unreasonable in the Tribunal’s evaluation of the evidence before it and no arguable lack of procedural fairness in its procedures or indicia of bad faith such as to give rise to a jurisdictional error.
It is apparent that the Tribunal considered the applicant’s claims, invited him to a hearing, endeavoured to ensure that he had the benefit of representation and, considered his response, but consistent with s.65 of the Migration Act, it was unable to be satisfied that the criteria for a protection visa were satisfied. It has not been established from the perspective of the appropriately informed reasonable lay observer that the Tribunal’s procedure or view of the nature of the material put before it by the applicant was such as to give rise to an apprehension of bias. It was open to the Tribunal to take the view that much of the voluminous material provided was “confused in its sense … difficult to understand” and that the “provenance of some of the documents provided is unclear”. These findings do not raise an arguable case of bias or apprehended bias.
The applicant also took issue both in the “amended application” and in the document headed “new submissions” with the manner in which the Tribunal set out the law in its decision. In particular, issue was taken with the Tribunal’s reference to Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 in relation to the general principle that the mere fact that a person claims to fear persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well-founded or for the reason claimed. It was submitted that Guo was not in point because it addressed a sur place claim. More generally the applicant submitted that the Tribunal applied the wrong test or failed to apply the correct legal test. However the manner in which the Tribunal set out the applicable law is not indicative of jurisdictional error and no arguable jurisdictional error is apparent in its findings and reasons.
The applicant also referred to the “information” and “key-words” he provided to the Tribunal including country information. In his view this was such that “the adverse credibility finding on the part of the decision-makers should be rejected”. He also appeared to contend that this material established the inadequacy of state protection in Korea.
Credibility is a matter for the Tribunal, as is the weight to be given to items of independent country information. The Tribunal as reconstituted did not make an adverse credibility finding in relation to the applicant. In any event, merits review is not available in this court. The fact that the applicant is of the view that there was sufficient material to warrant a favourable credibility finding does not establish an arguable case of jurisdictional error on the part of the Tribunal.
Further, as set out above, the Tribunal found that the independent country information and historical information submitted by the applicant was reliable evidence of the matters that the information addressed, but properly acknowledged that it “must determine whether the applicant before it had a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country”. No arguable jurisdictional error is established on this basis.
It was also contended that the first Tribunal decision and/or the “purported” decision of Scarlett FM affected the Tribunal as reconstituted in making an unfavourable decision. This contention is not made out. The Tribunal as reconstituted engaged in a reconsideration de novo of the applicant’s claims. It extended a fresh invitation to the applicant to attend a Tribunal hearing and it did not overlook the basis on which Scarlett FM found jurisdictional error on the part of the first Tribunal in a manner indicative of jurisdictional error (cf SZGUW v Minister for Immigration and Citizenship and Another (2009) 108 ALD 108; [2009] FCA 321).
Contrary to the applicant’s submission, the fact that the decision of the Tribunal as reconstituted contained a paragraph setting out the general law which was in substance very similar to a paragraph to the same effect contained in the decision of the Tribunal as originally constituted does not establish jurisdictional error or an arguable case of jurisdictional error, whether considered in terms of bias, a lack of procedural fairness or otherwise.
The applicant also took issue with the contents of his original protection visa application completed with the assistance of a migration agent provided by the Department. However even if this is to be seen as an allegation of fraud, it is not such as to vitiate the decision or procedures of the Tribunal in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. The Tribunal was aware of the applicant’s concerns in this respect and of the modifications he made to the claims in his original protection visa application. It assessed his claims on the basis that he did not agree with certain aspects of the protection visa application and on the basis of his claims as amended. In these circumstances the apparent allegation of third party fraud is not such as to establish an arguable case of jurisdictional error in relation to the decision of the Tribunal as reconstituted.
Conclusion
In these proceedings the applicant made extensive written and oral submissions. I am satisfied he has had the opportunity to raise all grounds he might wish to rely on in relation to the decision of the Tribunal as reconstituted were the matter to be reinstated. I have considered the grounds he raised as well as those grounds arising on all the material before the court. However as no arguable case of jurisdictional error has been established on the material before the court, in all the circumstances I am not persuaded that it is in the interests of justice that the orders dismissing the application for non-appearance should be set aside. It would be futile to do so. Accordingly the application of 7 January 2010 should be dismissed.
Moreover, because the substantive application should not be reinstated, I am not persuaded that the application for transfer of the proceedings to the Federal Court to hear at first instance the application for review of the Tribunal decision should be reinstated. It is neither necessary nor appropriate to consider the grounds for transfer given that I am not persuaded that it is in the interests of justice that the substantive application for review of the decision of the Tribunal should be reinstated.
There is one other matter that arose in these proceedings that should be mentioned. The applicant sought relief should he be subject to a proposal to remove him from Australia in one of the documents that he had filed (described as “affidavit (6)”). I understand that at the time that he filed such affidavit he had not been given any notice of intention to remove him from Australia. However on 27 January 2010, after his application to set aside the orders was filed and listed for hearing (but before the scheduled hearing date of 28 January 2010), the applicant was provided with a notice of his intended removal from Australia on 1 February 2010. A second notice of removal from Australia was issued on 28 January 2010, although this notice was expressed to be “subject to the resolution of your reinstatement application in the Federal Magistrates Court on 28 January 2010”.
When I raised the issue of the notice of intended removal with the solicitors for the first respondent I was assured that the Department did not intend to act on such a notice while the reinstatement application remained on foot. Given this assurance I considered it unnecessary in these proceedings to address the application to restrain removal of the applicant from Australia that was filed prior to the issue of any such notice.
The application should be dismissed.
I certify that the preceding one-hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 March 2010
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