SZNIX v Minister for Immigration

[2009] FMCA 840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 840

MIGRATION – Review of decision of Refugee Review Tribunal – applicant did not appear at Tribunal hearing – Tribunal complied with statutory obligations – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 425, 425A, 426A, 441A, 441C, 430
Migration Regulations Act 1994 (Cth), reg.4.35D

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship 920070 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 347
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2887
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 74 ALJR 1404

First Applicant: SZNIX

Second Applicant: SZNIY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 657 of 2009

Judgment of: Nicholls FM

Hearing date: 22 May 2009

Date of Last Submission: 22 May 2009

Delivered at: Sydney

Delivered on: 22 May 2009

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Mr G Johnson

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application made on 20 March 2009 is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $2,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 657 of 2009

SZNIX

First Applicant

SZNIY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 20 March 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on

   
   

   12 February 2009, which affirmed the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicants.

Background

1. I note that the Minister has put before the Court a bundle of relevant documents (Court Book – “CB”).

2. The applicants, who I understand are husband and wife, are citizens of Indonesia. They arrived in Australia in June 2008. They applied for protection visas in July 2008. Only the applicant husband made refugee claims. The applicant wife applied as a dependent member of his family. (See the application reproduced at CB 1 to CB, with annexures.) 

Applicants’ claims to protection

1. The applicants’ claims to protection in Australia are set out in a statement attached to the protection visa application. The applicant husband claimed to be from an ethnic Chinese family who was “targeted” by the “native Indonesians”. He claimed that his house and mother’s factory had been “looted” and “burnt to ashes”. Further, he said that his relatives also had similar experiences.

2. The applicant claimed to have left Indonesia because he could “no longer live in fear of harm” and that there was a “threat to [his] life.” He claimed that native Indonesians had painted “Pribumi Muslim, Kill Chinese” on every corner on the roads in Jakarta. The applicant husband also claimed that his past experiences had “accumulated” into “psychological” fear and he did not wish to return to Indonesia. (See CB 33.)

The Delegate

1. On 9 October 2008 a delegate of the respondent Minister refused to grant protection visas. The delegate found that as the applicant husband (“the applicant”) had not attended a prearranged interview, the delegate was unable to be satisfied in the absence of any verification that the applicant had a well founded fear of persecution in Indonesia as that term is understood under the United Nations Convention Relating to the Status of Refugees. (See CB 51 to CB 52.)

Application for Review

1. On 10 November 2008 the applicants applied for review to the Tribunal. I note that following receipt of the application, the Tribunal wrote to the applicants by letter dated 11 November 2008.  This letter, on its face, was said to have been sent by post on 12 November 2008 (CB 57 to CB 58).  I note that the letter was addressed to the applicants to the address given by them for the purpose of the Tribunal sending correspondence.

2. In that letter the Tribunal set out the process by which it was going to conduct the review.  In particular, the letter set out the importance of attending a hearing, describing it as the opportunity to give the Tribunal evidence in support of the application.

3. By letter dated 27 November 2008, the applicants were given notice by the Tribunal that, on the material before it, the Tribunal could not make a decision in their favour. Accordingly, they were invited to attend a hearing which was scheduled for 5 January 2009.  There is a notation on the copy of this letter next to the registered post “sticker”, bearing a registered post number, and indicating that the letter was posted on 27 November 2008. I also note that the letter was addressed to the same address for service that had been provided by the applicants in the application for review (CB 13 and CB 41).

4. The letter enclosed a “Response to Hearing Invitation” form and directed the applicants to complete and return the form, and to provide any new documents or written arguments to the Tribunal by 15 December 2008 (CB 60). 

5. From the material before the Court, it is evident that the applicants did not attend the hearing before the Tribunal on the date and at the place which had been scheduled. Nor does it appear that the Tribunal received any communication from the applicants in the nature of any application for postponement, or even explanation for their failure to attend (CB 61 to CB 63).

6. In those circumstances, the Tribunal proceeded to make a decision without taking further action to enable the applicants to appear before it.  It noted further in its decision record that the applicants had not provided any telephone number to enable the Tribunal to otherwise contact them ([25] to [26] at CB 69).

7. The Tribunal found the applicants’ claims to be “vague and lacking in detail”, and given that the applicants failed to attend the hearing, the Tribunal was not able to be satisfied that the applicants were persons to whom Australia owed protection obligations.  The Tribunal therefore affirmed the decision that was the subject of the review ([31] to [35] at CB 70).

Application to the Court

1. In the application to the Court, the applicants put forward the following as the grounds of the application:

   “(1) I would be prosecuted if I go back to Indonesia because of my ethnic.

   (2) The Tribunal did not fully consider my claims. The Tribunal made no finding as to whether or not this occurred, no findings about the potential application of decision 91 (R), and no findings about whether or not, if it did happen, it gave rise to a real chance of being killed when the applicants return to their original country.

   (3) The Tribunal failed to consider the real situation in Indonesia”.

   [Errors in original]

Hearing before the Court

1. At the hearing before the Court this morning the applicant husband appeared in person. He was assisted by an interpreter in the Indonesian language. The second named applicant did not appear. I understood from the applicant that his wife did not intend to appear today, but that he was here to represent her interests as well as his own. 

   
   

   Mr G Johnson appeared for the first respondent. Written submissions were also filed on behalf of the Minister.

2. When given the opportunity the applicant stated that he had not received the letter from the Tribunal inviting him to the hearing.

   
   

   He explained that the post office address that he had provided was a friend’s post office box, and that this, perhaps, may be why he did not receive the letter. While I gave the applicant further opportunity, and in particular explained to the applicant that in order for him to be successful before the Court today, the Court would need to find, at the very least, some legal error on the part of the Tribunal, the applicant was unable to further assist the Court.

3. I note also from the material before the Court that at the first Court date the applicant indicated that he wished to access the Court’s Legal Advice Scheme, and that his matter was referred to a solicitor on that panel.

Consideration

1. This is a case to which s.422B of the Act applies.

   
   

   This means that the matters that are set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

2. Relevantly, I note that in this case, pursuant to s.425 of the Act, which is part of Division 4, the Tribunal is obliged, unless certain circumstances are found to exist, to 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 particular, the Tribunal is obliged to do this where it considers that it can not make a decision favourable to the applicant on the basis of the material that has been put before it.

3. In the current case I am satisfied that the Tribunal complied with its statutory obligation pursuant to s.425 of the Act. That is, to invite the applicants to a hearing. From the material before the Court it is clear that the Tribunal also complied with its obligations pursuant to

   
   

   s.425A of the Act, consistent with the provisions of that section and its requirements that the letter must be sent by one of the methods specified in s.441A.

4. The period of notice of the hearing must at least be the prescribed period. Section 441A(4) permits notice to be given to the applicants via prepaid post. Such notice must be dispatched to the applicants’ last address for service provided to the Tribunal, or to the applicants’ last residential or business address. The provisions of

   
   

   s.441C of the Act provide that the applicants are taken to have received the letter so dispatched seven working days after the date of the letter. The prescribed period for the purposes of s.425A of the Act is set out in reg.4.35D(b) of the Migration Regulations 1994 (Cth) (“the Regulations”). Further, I note that in accordance with the relevant provisions, the letter must be dispatched within three days of the date of the letter.

5. As invited to do so by Mr Johnson today in his submissions, I am satisfied that, by what appears on the face of the copy of the letter which has been put before the Court, the letter was sent by registered post and was dispatched within three days of its date. Namely, on that very date. I also note that, from the time and date provided by the Tribunal for the hearing, the letter complied with all the other relevant statutory and regulatory requirements.

6. In all, therefore, I am satisfied that, from the material put before the Court, the Tribunal complied with all of its statutory obligations in relation to inviting the applicants to attend a hearing, including the contents of the invitation, in the way that it went about dispatching this invitation, and to relevant periods of notice to be provided to the applicants.

7. The first letter sent by the Tribunal to the applicants noted the importance of attending a hearing before the Tribunal. It clearly put the applicants on notice as to the possible consequences of a failure to attend, namely, that the Tribunal would proceed to determine the review without taking any further action to enable the applicants to appear before it.  Despite the matters set out in both of its letters, on the scheduled day and at the appointed place the applicants did not appear.  There was no evidence before the Court that either applicant made any attempt to notify the Tribunal of any difficulty in attending, nor did they seek any adjournment.

8. The applicant before the Court today said that he did not receive the letter of invitation.  Quite clearly, in the bundle of documents that has been put before the Court, the Tribunal sent two letters to the address for service. There was nothing from the applicant to say that he did not receive the first letter sent by the Tribunal.  But, in any event, it is the case that regardless of whether the applicant received, or did not receive, the letter, the Tribunal was entitled to proceed in the way that it did, given the failure of the applicants to appear at the scheduled time. This is because the Tribunal complied with its relevant statutory obligations in this regard.

9. It must be said that where applicants provide an address to which correspondence is to be sent by the Tribunal, they bear some responsibility and onus in that they must take reasonable steps to ensure that they will receive such correspondence. In my view, even putting to one side the fact that the Tribunal complied with its statutory obligations, I cannot see that the Tribunal can be held responsible in circumstances where it sent the letter to the very address that the applicants provided for the purpose of receiving correspondence. Even applicants who are newly arrived in this country, and even those who face some language barrier, must accept some responsibility for collecting correspondence in a timely manner if they choose to nominate a post office box as their address for service.

10. As I said, the Tribunal was, in any event, entitled to proceed in the way that it did pursuant to s.426A of the Act. Where a hearing invitation has been properly given under the Act, it is under no further obligation to search the papers lodged with it to discern any other means of communicating with the applicant (Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39], per Spender, French and Cowdroy JJ). In any event, the Tribunal in this case did turn its mind to whether a telephone number had been provided to it, so that it could contact the applicants when they failed to appear.

11. Relevantly (again bearing in mind the provisions set out in Division 4 of Part 7 of the Act), s.424A of the Act obliges the Tribunal to invite an applicant to comment on information that it considers would be the reason, or part of the reason, for affirming the decision under review. To the extent that the Tribunal made reference to the applicants’ protection visa application, this obligation is not engaged in circumstances where the reason for the Tribunal’s decision was the lack of detail, information, or particulars before it. (See, for example, SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208.)

12. The statutory regime that is relevant to applications for protection visas is found in ss.36(2) and 65 of the Act. In effect, these sections require the Tribunal to reach a requisite level of satisfaction that applicants meet the criteria for the grant of protection visas. In the case of the applicant before me today, this means that the Tribunal must be satisfied that he met the definition of “refugee” as set out in Article 1A(2) of the United Nations Refugees Convention. In my view (and I say this for the applicants’ benefit), the law is clear on this point. If the Tribunal is unable to reach this requisite level of satisfaction, the protection visa must be refused. (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

13. On a very simple reading of the Tribunal’s decision record, it is plain that it was unable to reach the requisite level of satisfaction because it found that the applicants’ claims were “vague and that they lacked detail”.  The Tribunal properly explained why it took the view that they were “vague and lacking in detail”.  This finding was a finding of fact open to the Tribunal to make on what had been put before it (See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69], per Tamberlin and Nicholson JJ.)

14. The Tribunal is not required to uncritically accept any, or even all, of what an applicant puts in their application (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 347 at 451). There is no jurisdictional error in the Tribunal simply being unable to be satisfied, on the material before it, that it was unable to reach the requisite level of satisfaction (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

15. In relation to the applicant wife, and the granting of a protection visa to her, given that no claims had been advanced by her, neither on her own part, nor by anybody else on her behalf, her claim for a protection visa was totally dependent on her husband being recognised as a refugee.  Having found that it could not be so satisfied in relation to the applicant (husband), it was therefore clearly open to the Tribunal to find that she too was not entitled to a protection visa as she did not meet the relevant criterion to be so granted that visa.

Ground One in the Application

1. Ground one asserts, simply, that the applicant would be persecuted, if he were to return to Indonesia because of his ethnicity. No grounds whatsoever have been provided in support of that “ground”. I note that orders made at the first Court date in this matter did provide the applicants with the opportunity to file an amended application giving complete particulars of their grounds.

2. I should also just note, again, that this is a case where the applicants were referred to a lawyer on the panel of the Court’s Legal Advice Scheme.

3. Whatever the case, I cannot see that this “ground” as stated can succeed. The applicant husband’s claims were initially set out in a statement attached to his application for a protection visa and, ultimately, the consideration of these claims is a matter for the Tribunal. The applicant’s statement that he would be persecuted if he were to return to Indonesia, bearing in mind the comparative role and power of the Tribunal with the relevant function of this Court, cannot assist the applicant before this Court today.

4. I can only agree with the Minister’s written submission that, at best, this ground seeks to challenge the Tribunal’s factual findings.  It is now well established (bearing in mind such High Court authorities as Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259) that this Court cannot entertain requests for such merits review.

Ground two

1. Ground two complains that the Tribunal did not fully consider the applicants’ claims. At best, this appears to have been particularised in the application with the claims that the Tribunal did not make findings as to whether the claimed events in Indonesia had occurred. Nor, it is said, did the Tribunal consider the claims in the context of the requirements of s.91R of the Act.

2. It is the case, again as the Minister submits, that this complaint misunderstands the nature of the Tribunal’s decision. As I have said, with reference to s.65 of the Act, the essence of this section is that it requires the relevant decision maker to be satisfied that an applicant meets the relevant criteria for the grant of whatever visa has been applied for. Amongst the criteria relevant to a protection visa there is the criterion set out in s.36(2) of the Act, to which I have already referred.

3. As I have said, the Tribunal’s finding in this regard was open to it. In the circumstances, the Tribunal was simply bound to find against the applicants when it was unable to reach the requisite level of satisfaction. The Tribunal did not need to proceed beyond that point in its analysis in the circumstances of what had been put before it. Nor was the Tribunal required in the “Findings and Reasons” of its decision record, pursuant to s.430 of Act, to again record each and every claim made by an applicant. This section requires the Tribunal, relevantly, to set out those matters which are relevant to, and support, the decision that it made.

4. Plainly, there is an obligation on the Tribunal to consider each claim, and integer of the claims, made by the applicants. I am satisfied, however, on what is before the Court, that the Tribunal in the current case did so. (See VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927, (2004) 81 ALD 332 at [62], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.)

5. The Tribunal set out the applicants’ claims, such as they were, under the heading “Claims and Evidence”. It made findings that these were “vague and lacking in detail.” It gave examples as to why it found this to be the case. In these circumstances, it was entirely open to the Tribunal to conclude that it could not be satisfied as to the matter set out in s.36(2) of the Act.

6. If the applicant had expected anything more from the Tribunal, as is implied in ground two, then he should have taken steps to ensure that he was able to receive the Tribunal’s invitation to a hearing and to have attended the hearing.

7. The failure to attend the hearing, even accepting the applicant’s statement that he did not receive the letter, his failure to have taken reasonable steps to ensure that he received the letter sent to him at the address for service, has led (as was said by a Full Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2887 at [5], per French, Emmett and Dowsett JJ) to the inevitable consequence of the application being refused. This ground also does not succeed.

Ground three

1. Ground three asserts that the Tribunal failed to consider the real situation in Indonesia.  Again, no particulars have been provided to the Court despite the opportunity to do so.  The short answer to the applicant’s statement in ground three is that, in the circumstances, there was no obligation on the Tribunal to have done so.

2. There is no obligation on the Tribunal, in the particular circumstances of this case as set out above, to have conducted enquiries as to the situation in Indonesia, whatever that may mean. (See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33] to [43], per Callinan J at [124]; note Kirby J contra at [74], Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 74 ALJR 1404 at [13], per McHugh J.) The opportunity for the applicants was to attend the hearing, or to have otherwise put before the Tribunal what they considered to be the real situation in Indonesia, which may have assisted them. I cannot see error as it is said to arise from what is stated in ground three. Simply, the Tribunal is not required to make out the applicants’ case for them.

Conclusion

1. In all, therefore, neither as it arises from the grounds stated in the application, nor from what the applicant husband said to the Court today (unfortunately limited as was), nor otherwise, can I discern jurisdictional error in the Tribunal’s decision. Both the applicants before the Court now had the opportunity before the Tribunal to enhance their claims.  That opportunity was not taken up.

2. I cannot discern jurisdictional error in the Tribunal’s decision. This application is therefore dismissed.

Costs

1. The Minister seeks costs set in the amount of $2,300.

2. It is appropriate that an order for costs be made in the normal course of events.  The applicant husband, who is also here today on behalf of his wife, when given the opportunity, put nothing before the Court to argue against the making of such an order.

3. As to the amount, I note that in matters of this type, and with reference to the relevant Schedule to the Rules of this Court, the Minister could have sought an amount far in excess of what he seeks today.  Even putting that to one side, I am satisfied that the amount sought by the Minister today is, bearing in mind the work that has been done by the Minister’s legal representatives in responding to the application that was put before the Court, a reasonable amount, and I will therefore make the order in that amount.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  28 August 2009