SZNFE v Minister for Immigration
[2009] FMCA 364
•7 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 364 |
| MIGRATION – Visa – Protection (Class XA) visa – citizen of the Republic of Korea claiming fear of persecution by the Korean government – where applicant did not attend the Tribunal hearing – applicant consented to hearing in his absence – where applicant’s consent was subject to conditions – where Tribunal declined to accept the applicant’s conditions and rescheduled the hearing – whether the Tribunal failed to take into account relevant considerations and relevant evidence – whether the Tribunal correctly applied the provisions of Migration Act 1958 (Cth) s.426A – whether the Tribunal failed to consider the applicant’s claim for a protection visa – certiorari and mandamus. |
| Migration Act 1958 (Cth), ss.91X, 414, 414A, 420, 425, 425A, 426A, 430, 476 |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2005) 144 FCR 1; [2004] FCAFC 263 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 |
| Applicant: | SZNFE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 230 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
An order in the nature of certiorari is to issue to quash the decision of the second respondent signed on 13 January 2009 and handed down on 14 January 2009 affirming the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
An order in the nature of mandamus is to issue remitting the applicant’s application for review of a decision of a delegate of the first respondent not to grant him a Protection (Class XA) visa to the second respondent for determination according to law.
The First Respondent is to pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 230 of 2009
| SZNFE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa. The applicant did not attend the Tribunal hearing.
The applicant seeks orders:
(a)in the nature of certiorari quashing the Tribunal decision; and
(b)in the nature of mandamus requiring the Tribunal to re-determine the matter according to law.
He relies on the following grounds of review:
(1)The second respondent (“the Tribunal”) failed to discharge its function of review under s .414 of the Migration Act 1958; and
(2)The Tribunal did not take into account relevant considerations and relevant evidence.
Background
The applicant is a citizen of the Republic of Korea. He arrived in Australia on 28th July 2008. He was interviewed by a Departmental officer at Sydney airport. He told the officer that he was a victim of conspiracy and would be in great personal danger if he were to return to Korea. He described the persons whom he feared as:
A group, ‘Min Ya Yong Clique’, which means the Queen name Min in Yi Dynasty. They have conspiracy between the state and government. They are the centre of Korean Nationalism.[1]
[1] Court Book 5
The applicant was taken into immigration detention and has remained at the Immigration Detention Centre at Villawood, NSW, since then. He applied for a Protection (Class XA) visa on 12th August 2008 with the assistance of a migration agent, Roslyn Smidt.
With his application for a protection visa, the applicant provided a handwritten statement in English, setting out his claims:
As the specific Seo family who had known by the coup d’etat power in 1884 and granted the High official Rank then, while this own family was sequestering themselves from the world, younger brother family [Seo Sangryong, Evidence 1] was annihilated by a Korean assault and this applicant’s own great-grandfather was murdered by the same assault in 1914. Then our family remained did not come out.
In 1978, the unique but indirect trace [Evidence] of the coup d’etat power in 1884 was exposed to Korean Regional Sentimentalist in Cheong Ju city as a power man who was billionaire, all children’s deaf mute hear of Queen Min’s native place with family register. Dr Oh’s murderous intent had been provoked to Mim (sic) sisters as Queen Mim’s same tribe in his place [Evidence]. The Mim sisters as Queen Mim’s same tribe have taken the role of bridge between Dr Oh’s power and the Korean government with holding this applicant’s person first time in his place.[2]
[2] Court Book 15
The statement continues in this vein for some 13 pages. The applicant claims that he was seriously harmed by way of downgrading his honour student status at his old school. He claimed that the Korean government had failed to protect him from this group and the Korean intensive group and the Korean National Intelligence Agency were aiming to kill him, after blinding his website.[3]
[3] Court Book 17
The applicant further claimed that the Korean government have blamed him for inciting the United States and Japan to be wary of Korean nationalism in Northeast Asia.[4] He claimed that the Korean government were seeking to harm and even kill him for his pro-Japanese sentiments.[5]
[4] Court Book 22
[5] Court Book 25-26
The applicant disclosed in his application that he had previously applied for refugee status in Canada, the United Kingdom and New Zealand. He had also applied unsuccessfully for refugee status with the UNHCR in Tokyo.[6]
[6] Court Book 57
The applicant provided a number of other documents, some in English and some in Korean.
Ms Smidt wrote to the Department by fax on 14th August 2008, advising that the applicant had withdrawn his instructions to her to act for him.
That same day, the applicant faxed a document to the Department headed Emergency of Lodgement (2). In that document he made the following claims:
This applicant can not be interviewed with the false application which was made by Ms Roslyn Smidt & John Vrachnas Solicitor.
<THE ITEMS DESIRED>
[1] Annulment of the false application by the Fictional Agent
[2] Autograph Application – “NO AGENT”
[3] Providing Document
[4] before review of release by minister
[5] Let this applicant make sure 1st mail (25 sheets) to have been got by the Department on 11th Aug. 2008.
[6] This applicant had much better not to get representative.
[7] This applicant want to contact case manager of this as soon as possible.[7]
[7] Court Book 129
The applicant then submitted his own application and supporting documents. The documents are lengthy and can be found in the Court Book at pages 147 to 549. He forwarded several items of correspondence to the Department about the form of his application. In one, dated 10th September 2008, he complained about his former migration agent who he complained had committed an “offense” by making a “tenacious forgery” against him.[8]
[8] Court Book 552
On 16th September 2008 the Department invited the applicant to attend an interview with a Departmental officer to take place at Villawood on “19 September 2008 (Thursday)”.[9] The following day, the applicant sent a fax to his case officer, pointing out that 19th September was not a Thursday (it was in fact a Friday) and the amount of notice was insufficient to allow him to prepare for the interview.[10]
[9] Court Book 563
[10] Court book 562
The interview was rescheduled to 24th September 2008. On that date the applicant faxed a statement to his Case officer.[11] He then provided a 6 page written statement.[12]
[11] Court Book 575
[12] Court Book 576-581
It appears that the interview actually took place on 25th September 2008, according to a file note by the Case Officer.[13] He recorded that the applicant stated that it would be “pointless” to discuss his claims as everything he wanted to say was in his written statements. The Case Officer noted that the applicant refused to have the conversation recorded. The Case Officer decided to terminate the interview as the applicant declined to be interviewed about other than background matters. However, the Case Officer noted:
He just made a final remark that he would be killed should he return to South Korea. He was not very clear as to who would kill him but he indicated that the current government would be involved.[14]
[13] Court Book 582
[14] Ibid
On 10th October 2008 the delegate of the Minister refused the applicant’s application for a Protection (Class XA) visa. The delegate found that there was no credible information to substantiate the applicant’s claim that he would be killed by the intelligence agencies if he were to return to South Korea. The delegate referred to the United States State Department’s Report on Human Rights Practices for 2007 which stated that there were no reports that the Korean government or its agents committed arbitrary or unlawful killings. The delegate found the applicant’s claim to be unsubstantiated.[15]
[15] Court Book 596
The applicant objected to the delegate’s decision, claiming it was ‘just a mistrial biased to administration.”[16] He accused the delegate of being “another forgery-making officer in relation to the case in Canada”.[17]
[16] Court Book 597
[17] Court Book 599 – this appeared to be a reference to his unsuccessful application for refugee status in Canada
Application for review by the Refugee Review Tribunal
On 14th October 2008 the applicant forwarded an Application for Review to the Refugee Review Tribunal. With the application the applicant provided a handwritten statement.[18] He also set out a request to the Tribunal about the processing of his application:
Something to talk about more
[18] Court Book 606-618
Please do not NOTICE until the Tribunal (RRT) analyse my own full submissions filtered Migration agent’s forgery completely. Of course the Delegate’s decision should be excluded as a mistrial.
The period in Immigration Detention Centre (Villawood) does not matter for this applicant.
Please do not make haste and do not spoil a conclusion.
Thank you[19]
[19] Court Book 619
On 17th October 2008 the Tribunal forwarded to the applicant an Invitation to Appear Before the Tribunal.[20] The hearing was scheduled for 27th November 2008.
[20] Court Book 678
The applicant sent a faxed memorandum to the Tribunal on 22nd October 2008, complaining that the Minister’s delegate was also his Case Officer, interviewer, assessment-maker, and decision-maker. He also advised the Tribunal:
If the Tribunal write to this applicant for additional argument, I [applicant[21]] will give this answer to the Tribunal within the time specified only by Fax.[22]
[21] The applicant’s name is not published to comply with Migration Act 1958 s 91X
[22] Court Book 685
The Tribunal wrote back to the applicant on 24th October 2008, advising that the hearing scheduled for 27th November 2008 would proceed.[23]
[23] Court Book 688
The applicant replied by fax that same day:
CONSENT OF “WITHOUT A HEARING”
This applicant [SZNFE] consent to the Tribunal deciding this case [RRT file number: 0806719] without a hearing
<CONDITIONS>
Observe taking at least 6 months [ordinary period]
Do find the Delegate’s decision was fictional
Do not avoid evidence
Do only documents & written statement – test
Observe non-political decision
Contain humanitarian consideration
And the very good reason of “without a hearing” has been noticed to the Tribunal initially, with relation to the Delegate’s fictional decision.[24]
[24] Court Book 694
There followed a series of file notes stating that the applicant had refused to accept the Tribunal’s “Invitation to hearing letter” and had declined to be escorted to the hearing at the Tribunal.[25]
[25] Court Book 701
On the morning of the hearing the applicant forwarded to the Tribunal by fax a Response to Hearing Invitation in which he stated that he did not want to come to a hearing. At the bottom of the form, after his signature, the applicant had written the words:
(Good reason appended).[26]
[26] Court Book 702
That same morning the applicant faxed a memorandum to the Tribunal headed “Something to talk about more”[27] in identical terms to his previous memorandum with that heading.[28]
[27] Court Book 707
[28] Court Book 619
On 28th November 2008 the Tribunal sent to the applicant a further Invitation to appear before the Tribunal. The letter included this explanation:
On 27 November 2008 a faxed Response to Hearing Invitation was received by the Tribunal. In it, you indicated that you did not want to come to a hearing. You appended a reason. That reason stated that you consented to the Tribunal deciding your case without a hearing subject to six conditions which you set out.
This letter is to ensure that you clearly understand that the procedures of the Tribunal do not permit it to entertain any conditions, and that the Tribunal does not accept your conditions.
However, the Tribunal offers you a further invitation to attend a hearing on this basis, that is, without any of your conditions. If you do not attend the scheduled hearing the Tribunal will make a decision without further notice.[29]
[29] Court Book 721
The Tribunal scheduled the hearing for 8th December 2008.
On 1st December 2008 the applicant faxed to the Tribunal a Response to Hearing Invitation on which he had ticked the box to indicate that he did not want to come to a hearing. At the bottom of the page, after his signature and date, he had written the words:
[Good reason for ‘Consent’ appended][30]
[30] Court Book 729
The applicant also sent in two other documents. The first was headed “consent of ‘Without a Hearing’”[31] and was expressed in identical terms to his earlier document of that name.[32]
[31] Court Book 730
[32] Court Book 694
The applicant’s second document was typed and said:
Something To Talk About More
Please do not come to a conclusion until 24th Apr. 2009
It’s a right length of time for RRT’s analysing my own full submissions filtered Migration agent’s forgery and Delegate’s fictional decision
The period in Immigration Detention Centre (Villawood) does not matter without any Korean’s next door for this applicant.
It’s one of conditions for ‘CONSENT of Without a Hearing’ are within the UN Convention & its Protocol which these were not reflected on the initial decision.
Please do not make haste with a conclusion and give me new life in Australia.[33]
[33] Court Book 731
The Tribunal’s file note shows that a Tribunal officer received a telephone call from the detention centre on the morning of 8th December 2008 advising that the applicant was declining to attend the hearing because he did not need to attend.[34]
[34] Court Book 734
The applicant faxed a further Response to Hearing Invitation to the Tribunal on 29th December 2008 and dated that day, again advising that he did not want to come to a hearing.[35] He sent a further version of that document, this time dated 5th Jan. 09, on 5th January 2009.
[35] Court Book 735
On 12th January 2009 the applicant sent a further memorandum to the Tribunal, headed “Pending Notice of a Conclusion”. In it, he referred to the Tribunal’s time standards and complained that, because of the extremely unusual procedures of his claim, the interview and hearing of the RRT were “absolutely not fair” in his favour. He then requested:
Therefore, RRT must send a decision letter of the Tribunal at the latest on 30th Jan.2009 only by mail only to the person in question [applicant[36]]. If not, this issue may constitute a delay problem.[37]
[36] Applicant’s name deleted to comply with s 91X
[37] Court Book 737
The applicant also sent to the Tribunal yet another Response to hearing Invitation, also dated 12th Jan.09, indicating that he did not want to come to a hearing of the Tribunal.[38]
[38] Court Book 738
That same day he faxed in another document, headed “A Written Accusation”, in which he referred to his former migration agent as “The criminal suspect” and accused her of forgery. He claimed that the migration agent’s “partner in this crime” was a secret staff member of the KNIB (which he described as “Korean KGB”) at the Korean Embassy in Australia. He also complained about several officers of the Department of Immigration and Citizenship. He then complained about the RRT compelling him to make a disadvantageous choice.[39]
[39] Court Book 739-740
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 13th January 2009 and handed the decision down on 14th January. The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa.[40]
[40] Court Book 747
In its decision, the Tribunal referred to the following information under the heading Claims and Evidence:
a)The unsigned record of the interview with the applicant at the airport on 28t July 2008;
b)The application for a Protection visa lodged on 12th August 2008, including correspondence from the migration agent;
c)The hearing and decision by the Minister’s delegate; and
d)The material before the RRT.
In its Findings and Reasons[41] the Tribunal accepted that the applicant is a national of South Korea.
[41] set out in the Court Book on pages 756 to 760
It then proceeded to set out the steps that were taken to invite the applicant to attend a hearing and the applicant’s actions and written replies. It then proceeded to refer to other items of correspondence from the applicant sent between1st December 2008 and 12th January 2009.
The Tribunal stated:
The Tribunal finds that the applicant has been properly invited to the hearing, and the applicant declined to attend. The Tribunal is satisfied that the conditions sought by the applicant are unreasonable, and his consent is effective. The tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.[42]
[42] Court Book 758 at [63]
The Tribunal noted that the applicant’s claims could not be tested because he did not attend an oral hearing. It proceeded to consider the information in the written material before it.
The Tribunal had this to say about the applicant’s written material:
The material before the Tribunal is voluminous and not always in sequence, but these are not the major issues. The issue which the Tribunal cannot overcome is that the applicant’s English text material is unable to be understood.[43]
[43] Court Book 759 at [67]
The Tribunal then set out some quotations from the applicant’s initial statement that accompanied his protection visa application. The Tribunal also referred to the applicant’s statement for RRT Review which contained statements such as:
But the linking truth of my own family origin has been as it stands with potential energy.[44]
[44] Court Book 760 at [68]
The Tribunal noted the applicant’s claim that the delegate had misconceived his refugee claims. However, the Tribunal expressed itself unable to give any weight to the delegate’s summary of the facts taken from the interview because there was no recording of the hearing before the delegate.
Similarly, the Tribunal attached no weight to the record of the airport interview because it was not signed by either the applicant or the interviewing officer and there was no recording of it.[45]
[45] +Ibid at [72]
The Tribunal then proceeded to find:
74)The Tribunal finds that this is a matter where a hearing was clearly required, and it has invited the applicant on two occasions to a hearing. However, the applicant has not accepted the invitations. The Tribunal has stated in writing on two occasions that it was unable to make a favourable decision on the written information alone. It has also advised the applicant that it could not agree to his conditions for holding an interview, one of which was to find that the delegate’s decision was fictional.
75)The Tribunal cannot confidently proceed on the written evidence before it because of the reasons referred to above. The Tribunal finds in this regard that the applicant’s claims are vague and unclear.
76)Accordingly, the Tribunal cannot be satisfied on the evidence before it that the applicant faces a real chance of persecution should he return to South Korea now or in the foreseeable future.[46]
[46] Court Book 760 at [74]-[76]
The Tribunal was not satisfied that the applicant was a refugee and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings by filing an application and two affidavits in support on 2nd February 2009. He then filed a further nine affidavits between 13th February and 12th March 2009.
The application was listed for final hearing on 26th March 2009. The directions made on the First Court Date hearing, when the applicant was not represented, required the applicant to file and serve a short written outline of submissions ten days before the hearing and the first respondent to file and serve a written outline of submissions five days before the hearing. The first respondent filed and served a written outline of submissions on 16th March 2009, no submissions having been filed by the applicant at that stage.
On 17th March 2009 Mr Nair of counsel forwarded to the Registry copies of an amended application and an outline of submissions and list of authorities for filing. The lawyers for the Minister then filed an Outline of Supplementary Submissions on 23rd March 2009.
The applicant was granted leave to rely on the amended application. Mr Nair told the Court that only the second ground of review in the amended application was being pressed. That ground claims that the Tribunal did not take into account relevant considerations and relevant evidence.
The particulars of that ground are set out as:
i)The Tribunal held that it could not “attach any weight to the airport interview as the written document has not been signed by the applicant or the interviewing officer, and there has been no recording of the interview”.
ii)The Tribunal found itself “unable to attach any weight” to the delegate’s evidence of the applicant’s claim.
iii)The written document of the airport interview was made by an officer of the first respondent in carrying out the officer’s official duties. It was the first record of the applicant’s core claim to be owed protection obligations by Australia. It was not open to the Tribunal to reject this evidence merely on the basis that it had “not been signed by the applicant or the interviewing officer, and there has been no recording of the interview.”
iv)The delegate’s evidence was provided as part of the delegate’s duties as the delegate of the first respondent. It was not open to the Tribunal to dismiss the evidence in so summary a manner.
It was submitted for the applicant that a failure by the Tribunal to take into account relevant material is an error of law amounting to jurisdictional error (Craig v State of South Australia[47] at [179]; Minister for Immigration and Multicultural Affairs v Yusuf[48]at [82]).
[47] (1995) 184 CLR 163;
[48] (2001) 206 CLR 323; [2001] HCA 30
Mr Nair also referred the Court to SGBB v Minister for Immigration and Multicultural and Indigenous Affairs[49], where Selway J said at [17]:
But this does not mean that the application is to be treated as an exercise in 19th Century pleading.
[49] (2003) 199 ALR 364; [2003] FCA 709
Further, the Full Court of the Federal Court said in Dranichnikov v Minister for Immigration and Multicultural Affairs[50] at [49]:
The Tribunal must, of course deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the tribunal can only deal with the claims actually made.
[50] [2000] FCA 1801
Mr Nair submitted that the Tribunal could not attach any weight to the airport interview because the document had not been signed by either the applicant or the interviewing officer and there was no recording of the interview. He submitted that this was a document made by an officer of the first respondent in carrying out the officer’s official duties and it was not open to the Tribunal to reject it. By failing to attach any weight to the document the Tribunal failed to deal with a relevant issue.
Again, Mr Nair submitted that it was not open tot eh Tribunal to dismiss the delegate’s evidence, which had been provided as part of the delegate’s duties. Again, by failing to attach any weight to the evidence the Tribunal failed to deal with a relevant issue and thereby fell into jurisdictional error.
Further, it was submitted that the applicant had clearly articulated a claim of a fear of persecution for political opinion or imputed political opinion. He had made that claim at the airport in his interview. The applicant was invited too attend an interview with the delegate and had attended. He had made a claim that he would be killed should he return to South Korea and the delegate had made a file note about that claim.[51]
[51] Court Book 582
Mr Nair referred the Court to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[52] at where it was held;
Where the Tribunal fails to make a finding on ‘…a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408[95].
[52] (2005) 144 FCR 1; [2004] FCAFC 263
Later in that same decision, the Full Court held at [63]:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act.
In conclusion, counsel for the applicant submitted that, by failing to attach weight to these pieces of evidence, the Tribunal had failed to deal with a relevant issue, indeed the applicant’s core claim, which had been sufficiently raised.
The First Respondent’s Submissions
The solicitor for the Minister, Ms Dinihan, submitted that the Tribunal, in taking the actions that it did in inviting the applicant to attend a hearing, was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, under s.426A of the Migration Act: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[53]at [5]; NBBL v Minister for Immigration and Multicultural and Indigenous Affairs[54] at [20].
[53] [2004] FCAFC 287
[54] [2006] FCA 1045
As to the Tribunal’s decision to place no weight on the record of the airport interview, the applicant had objected to the interview being recorded[55] and did not agree that the record of the interview fully reflected the claims that he wished to make in Australia. He did this by not signing the document.
[55] Court Book 1
Thus, it was open to the Tribunal not to place any weight on the document.
Ms Dinihan also submitted that it was open to the Tribunal not to place any weight on the delegate’s summary of the interview or the delegate’s decision record. Not only had the applicant refused to have the interview recorded[56] but he did not want notes taken during the interview.[57] Further, the applicant took issue with the delegate’s decision, calling it “a mistrial biased to administration”[58] and accused the delegate of misquoting him at the interview.[59]
[56] Court Book 582 and 585
[57] Court Book 594
[58] Court Book 597
[59] Court Book 598
It was, she submitted, therefore open to the Tribunal to place no weight on the delegate’s summary of the facts of the case.
Thus, it is contended that the Tribunal did not fall into error and the application should be dismissed.
Conclusions
The Tribunal in this case was dealing with an extremely difficult an unco-operative applicant. He has provided a multiplicity of documents setting out what appears to be a far-fetched claim, which is often difficult to understand and contains elements of paranoia. His attacks on the unfortunate migration agent for an alleged forgery of his protection visa application in collaboration with a Korean intelligence agent based at the Korean Embassy, and his description of the delegate’s decision as a fiction, prepared in some unexplained form of collaboration with people in Canada who thwarted his application for refugee status in that country are, at the very least, open to be regarded with some scepticism by the Tribunal.
In my view, the Tribunal’s decision to proceed to a decision without taking any further action to allow or enable the applicant to appear before it is, in the circumstances, a proper exercise of the discretion given to the Tribunal by s 426A of the Migration Act.
The Tribunal invited the applicant to attend a hearing under the provisions of s.425 of the Act. It was aware that he would require a Korean interpreter, although his written English, at least, is quite comprehensive. The Tribunal invited the applicant to attend a hearing scheduled for 27th November 2008. The invitation complied with the requirements of s.425A of the Act, which include containing a statement of the effect of s.426A (s.425A(4)).
The applicant wrote to the Tribunal, indicating that he was consenting to the decision being made without a hearing, but on six conditions. The Tribunal sent a second invitation to the applicant, advising him that the hearing would proceed as scheduled. The letter complied with s.425A of the Act. The letter emphasised in bold printing that the Tribunal had the power to make a decision on the review without taking further action if the applicant did not attend.
The applicant refused to attend. The Tribunal did not make a decision under s.426A, as it had the power to do. Instead, it re-scheduled the hearing to 8th December 2008 and sent him a further invitation to hearing. The letter to the applicant referred to the six conditions that he had set. The Tribunal advised him that it would not accept those conditions but had offered the applicant a further opportunity to attend the hearing. The Tribunal correctly exercised its power to reschedule the hearing given to it by s.426A(2) of the Act.
The Tribunal was well within its rights to refuse to accept the applicant’s conditions. One of the conditions was to find that the delegate’s decision was “fictional”.[60]
[60] Court Book 694 and 730
Another condition set by the applicant was that the Tribunal was to take “at least 6 months”[61] to make its decision. The Tribunal is required by s.414A (1) of the Migration Act to review the delegate’s decision under s.414 and record its decision under s 430 within 90 days.
[61] Ibid
The applicant refused to attend the rescheduled hearing. He kept sending to the Tribunal copies of a Response to Hearing Invitation where he had ticked the box marked “NO, I do not want to come to a hearing”, which he sent on 1st December and 29th December 2008 and 5th and 12th December 2009. Then, having initially asked the Tribunal to defer its decision for at least six months or “until 24th Apr. 2009”,[62] the applicant asked the Tribunal on 12th January 2009 to hand down its decision by 30th January at the latest.[63]
[62] Court Book 731
[63] Court Book 737
The Tribunal signed its decision on 13th January 2009 and handed the decision down the next day. The Tribunal did not fall into error in the way it exercised its discretion under s.426A of the Act. In my view, the reverse is true. The Tribunal bent over backwards to give an unco-operative applicant a reasonable opportunity to attend a hearing to give oral evidence and present arguments in support of his claim.
Counsel for the applicant has submitted that the Tribunal fell into error when it decided not to give any weight to the record of the airport interview and the delegate’s file note of the interview and the delegate’s decision record. This, he submitted, was a jurisdictional error as the Tribunal had ignored relevant considerations and relevant evidence.
The Tribunal had decided not to give those documents any weight because:
a)the applicant had specifically declined to allow a recording to be made;
b)he had failed to sign the record of the airport interview;
c)he had refused to allow the delegate to make any notes of the interview; and
d)he had repudiated the delegate’s decision, calling it “fictional”.
In my view, the Tribunal’s view that the documents should not be given any weight stems entirely from the applicant’s own actions. True it is that the Tribunal is bound by technicalities, legal forms or rules of evidence (s.420(2)), so the Tribunal was not obliged to disregard them. The weight to be given to information before the Tribunal is a matter for the Tribunal itself as part of its fact-finding function (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[64]; SZANK v Minister for Immigration & Multicultural & Indigenous Affairs[65] per Hely J at [16]), although it is conceded that these two decisions refer specifically to the weight to be given to country information).
[64] [2004] FCAFC 10
[65] [2004] FCA 1478
The Tribunal clearly chose not to give any weight to this information because the applicant had not adopted it, had criticised the accuracy of it, and because it had not been recorded. In my view, this was another example of the Tribunal making an effort to be fair to the applicant. I note also that all of these documents were subject to those deficiencies because of the actions of the applicant.
Accordingly, I am satisfied that the Tribunal did not fall into error by declining to give any weight to the record of the airport interview, the delegate’s file note of the interview, or the delegate’s decision record.
The Tribunal was sorely-tried by the applicant’s unreasonable behaviour but went to a considerable degree of effort to accord him procedural fairness. It is unfortunate, therefore, that the Tribunal did not address the applicant’s core claim. True it is that the Tribunal expressed itself not to be satisfied that the applicant faces a real chance of persecution should he return to South Korea at the time of the hearing or in the foreseeable future.
Unfortunately, what the Tribunal did not do was consider what this claim actually was. The applicant claimed in his application for a protection visa that he feared serious harm and even death from an ultra-nationalist clique in South Korea, with the aid of the Korean National Intelligence Agency. He claimed that he could not obtain effective state protection because he is perceived as having pro-Japanese sympathies.
This claim is a claim of a well-founded fear of persecution for the Convention reason of political opinion or imputed political opinion. The Tribunal found the applicant’s claims to be “vague and unclear”[66] but never made any analysis of what those claims appeared to be, merely claiming that the applicant’s English text material “is unable to be understood”.[67] The applicant’s claims may be vague, voluminous, out of sequence or even far-fetched, but there is sufficient material to show that the applicant claims a fear of serious harm from an ultra-nationalist group in South Korea with the aid of a Korean Intelligence Agency with the complicity or condonation of the Korean Government for the Convention reason of political opinion or imputed political opinion. The Court does not have the power to make any assessment of the merits of the claim; that is a task for the Tribunal.
[66] Court Book 760 at [75]
[67] Court Book 759 at [[67]
Unfortunately, the Tribunal did not make any attempt to address that claim and thereby fell into jurisdictional error. It follows that the Tribunal decision does not attract the protection of s.474 of the Act and the application for review must be granted. The Court must therefore make orders in the nature of certiorari and mandamus and consider the matter of costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 28 April 2009