SZNTG v Minister for Immigration

Case •

[2009] FMCA 1005

•

6 October 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1005
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of The People's Republic of China – applicant did not attend RRT hearing – no jurisdictional error.
Migration Act 1958 (Cth) ss.425, 426A, 474
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
Applicant: SZNTG
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1694 of 2009
Judgment of: Scarlett FM
Hearing date: 6 October 2009
Date of Last Submission: 6 October 2009
Delivered at: Sydney
Delivered on: 6 October 2009

REPRESENTATION

Applicant: Appeared in person
Solicitor for the Respondent: Ms Quinn
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

  3. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1694 of 2009

SZNTG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal’s decision was made on 17th June 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.

  2. The Applicant seeks a review of that decision and in particular he seeks that the Tribunal decision should be set aside.  It has been explained to the Applicant that the Court has power to set aside the Tribunal decision, but in order to do so the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. 

Background

  1. The background to this matter is that the Applicant is a citizen of Pakistan. He arrived in Australia on 23 November 2008. He applied for a Protection (Class XA) visa on 5th January 2009.  In his application he included a statement in which he claimed that he left the country because he was the representative of a political party.  His opponents succeeded in the 2008 election, and after the election, his opponents decided to take their revenge on him for his political activities. He claimed that they started to threaten him and attempted to murder him on two occasions, but fortunately he escaped from the scene.       

  2. He claims that he reported these matters to the police, and sought protection from the police, but due to political influence the police could not help him.  As a result, he decided to leave his homeland and as he said, “I ran away and came to Australia to save my life.”[1] 

    [1] See Court Book at page 18.

  3. The Department of Immigration and Citizenship wrote to the Applicant on 20th January 2009.  He was invited to attend an interview with an officer from the Department on Tuesday 24 March.  Unfortunately, the Applicant did not attend the interview. The delegate of the Minister for Immigration and Citizenship refused the application for a protection visa. That refusal was made on 24th March 2009.[2]   

    [2] See Court Book at page 35.

  4. In the Protection (Class XA) visa decision record, the delegate set out the Applicant’s claims, and noted that the Applicant was invited to attend an interview to discuss his claims. That interview was to be conducted on 24th March 2009.  The delegate said:

    The applicant did not contact or telephone me to confirm his attendance and did not attend the interview as scheduled.  He did not provide any reason for his non-attendance.  The letter sent to the applicant’s latest postal address has not returned to the Department. 

    The applicant has failed to take up an opportunity to substantiate his claims.  Under these circumstances, I have decided to make a decision without taking any further action to enable the applicant to appear before me.[3]

    [3] See Court Book at page 43.

Application to the Refugee Review Tribunal

  1. After his application for a protection visa was refused, the Applicant then applied to the Refugee Review Tribunal for a review of that decision. That application was made on 9th April 2009. The Applicant did not provide any additional information to the Tribunal to accompany his application for review. The Tribunal wrote to the Applicant on 30th April 2009. That letter was an invitation to appear before the Tribunal.  The hearing was scheduled for 16th June 2009.  In the letter, the Tribunal said, relevantly:

    The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.

    You are invited to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in your case.[4]

    [4] See Court Book at page 56.

  2. The letter then set out the time and date of the Tribunal hearing, along with its location, being the Sydney office of the Refugee Review Tribunal.  The letter went on to say:

    The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.  Please note that if you fail 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.

  3. The letter went on to explain that the Applicant could ask the Tribunal to obtain oral evidence from another person, or other persons, and, also, asked the Applicant to complete a response to hearing invitation form.  The letter went on to say:

    Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator.  Please return the completed form by 18 May 2009.[5]

    [5] See Court Book at pages 56-57.

  4. The Applicant did, indeed, complete the response to hearing invitation.  In that document, he indicated that he wished to take part in the Tribunal hearing and required the services of an interpreter in the Urdu language. The response to hearing invitation was received at the Tribunal on 21st May 2009.[6]

    [6] See Court Book at page 58.

  5. However, on the day of the hearing, 16th June 2009, the Applicant did not attend. The Tribunal hearing record is marked to show that the Applicant did not appear.[7] 

    [7] See Court Book at page 60.

  6. The Tribunal made its decision the following day, 17th June 2009, affirming the decision not to grant the Applicant a Protection (Class XA) visa.[8]

    [8] See Court Book at page 64.

  7. In the decision record, the Tribunal set out at paragraphs 19 to 21 the Applicant’s claim for protection as set out in his protection visa application.  The Tribunal noted that in his application for review the Applicant did not make any new claims. The Tribunal went on to record that the Applicant was invited to attend the hearing at 1:00pm on 16th June 2009. 

  8. The Tribunal noted that it received a Response for Hearing Invitation in which the Applicant stated that he wanted to attend. However, the Tribunal said:

    The applicant did not, however, appear before the Tribunal on 16 June 2009 at the scheduled time or contact the Tribunal about his failure to attend. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.[9]

    [9] See Court Book at page 67.

The Tribunal’s Findings and Reasons

  1. In its findings and reasons the Tribunal summarised the Applicant’s claim to seek protection because of a fear of persecution for political opinion, which is a Convention ground, and he had noted in his claim that he could not obtain protection from the harm that he feared within his country.  The Tribunal went on to say, however:

    Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant left his country, whether there is a real chance that he will face serious harm in his country for a Convention reason now or in the reasonably foreseeable future if he returns there, and/or whether he cannot or will not return to Pakistan because he fears harm there, as he claims, for the reasons that he claims. 

    On the evidence presently before it the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future if he returns to his country.[10]

    [10] See Court Book at page 68 at [26]-[27].

  2. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

Application for Judicial Review

  1. The Applicant applied to this Court for a review of the Tribunal decision by means of an application and an affidavit in support, filed on 16th July 2009. The Applicant attended on the First Court Date which was 17th August 2009 where orders were made by consent about the filing and serving of relevant documents, any additional affidavit, any amended application and any written outline of submissions.

  2. The Applicant has not filed any further material at the Court, but he has attended Court today. In his application he sets out three grounds of review.  They are as follows: 

    i)That the Respondents did not follow the procedure as required by s.36(2)(a) of the Act, the requirements were not followed under the Migration Act.

    ii)The requirements laid down under s.91R(1)(a) were totally ignored while dealing with the instant case. The requirements laid down under the UNHCR were not complied with. As such there is a gross violation of the regulations and the Act.

    iii)That the applicable law in the instant case was not looked into, the laws of natural justice were not taken into consideration, coupled with the jurisdictional error as the grant of Protection (Class XA) visa set out in part 855 of Schedule 2 to the Migration Act.

  3. The Applicant has attended Court and was asked to expand upon and explain the grounds in the application. He indicated that he did not have anything further to say about the first ground relating to section 36 of the Act and that it was a matter for the Court. He was asked about the second ground claiming that the requirements under section 91R of the Migration Act were totally ignored while dealing with the instant case. In reply to that he said that he had a problem with his leg which was why he could not attend the Tribunal hearing.

  4. When asked about the third ground relating to the law not being looked into and a breach of natural justice, the Applicant indicated that it went back to his failure to attend the Tribunal hearing.  The Applicant was asked about his apparent failure to attend the Departmental interview and the Tribunal hearing.  He confirmed that it was correct that he had not attended the interview and he had not attended the hearing. 

  5. The Applicant said that in each case he suffered from a medical problem which made it impossible for him to walk or stand, even for a period of two minutes. He said that he had obtained medical advice in respect of this problem which had caused him a considerable amount of pain. He had not obtained a medical certificate but he had been prescribed medication which he took for a period of some 20 days, and the medicine made him very drowsy. 

  6. The Applicant confirmed that he did not contact the Department about his inability to attend the interview. He confirmed that he did not contact the Tribunal to advise about his medical problem, to ask for an adjournment or a postponement of the hearing. He said that he had told the Tribunal in the Response to Hearing Invitation that he did intend to attend. He confirmed that he had obtained medical advice but did not obtain a medical certificate, although he did get a prescription.  At the time, he said that he was confused and did not think about the matter. 

  7. The Applicant was offered the opportunity to address the Court generally about his claim. He told the Court he did not have anything that he specifically wished to say except that he conceded that his case had been harmed by not attending the hearing, and he asked for the opportunity to have a further hearing before the Refugee Review Tribunal.

  8. He conceded that attending the Tribunal was the basis of his case, and if he had attended the hearing then his appeal to this Court would have had some substance. The Applicant, with commendable frankness, acknowledged that he had made a mistake by not attending the Tribunal hearing, and reaffirmed his request for a further opportunity to do so.

  9. Ms Quinn, solicitor, who appeared for the Minister, provided a written outline of submissions and made a brief oral submission to the Court.  She pointed out that the Applicant had indicated that he had not attended the Tribunal because of an injury to his leg. He had indicated his wish to attend the hearing in the Response to Hearing Invitation but had failed to appear.

  10. Ms Quinn submitted that the Applicant did not contact the Tribunal to say that he had been prevented from attending the hearing because of his medical condition, and in the absence of information from the Applicant, the Tribunal was entitled to proceed under section 426A of the Act. Ms Quinn also submitted to the Court that, whilst the Applicant claimed to have sought medical advice and medical treatment, he had not produced any supporting evidence, including medical evidence.

  11. The Minister’s written submissions are that the references to subsection 36(2)(a), 91R(1)(a) of the Migration Act and part 855, which quite reasonably has been taken to mean part 866 of Schedule 2 of the Migration Regulations relating to protection visa, all relate to the criteria for the grant of a visa. The Tribunal’s decision was that there is insufficient evidence to be satisfied of any of the Applicant’s claims, and it was submitted that an allegation that the Tribunal did not apply the correct law was meaningless.

  12. It was also submitted that the allegation that the Tribunal failed to apply the UNHCR, which stands for United Nations High Commissioner for Refugees, does not make sense. The submission was that sections 36 and 65 of the Act set out a legislative regime that requires a positive state of satisfaction as to whether protection obligations are owed, and a failure to reach the required state of satisfaction mandates a refusal decision.

  13. The Court was referred to a number of decisions including SJSB v Minister for Immigration and Multicultural and Indigenous Affairs[11] at [15] – [16].  As to the allegation that the Tribunal did not follow the laws of natural justice, it was submitted that the Applicant had been invited to attend the hearing, advised that he would attend but did not appear on the scheduled hearing date, and in the circumstances, the Tribunal was entitled to make a decision without giving the Applicant any further opportunity to attend a hearing. 

    [11] [2004] FCAFC 225

  14. There was no breach of natural justice, and it is submitted on behalf of the Minister that there is no jurisdictional error in the Tribunal’s decision.

Conclusion

  1. In considering the matter before the Court, it is clear that the Tribunal was not satisfied on the evidence before it that the Applicant has a well-founded fear of persecution if he were to return to Pakistan for a Convention reason;  in this case, the reason of political opinion. The Tribunal was not satisfied because the information before it was inadequate.  Indeed, the Tribunal had no more information on the day of the hearing than it did when it wrote to the Applicant and invited him to attend a hearing. The situation of applicants not attending hearings of the Tribunal has been considered on numerous occasions in this Court and on appeal to the Federal Court.

  2. In SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs[12], Healy J commented at [16]:

    The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.

    [12] [2005] FCA 1306

  3. I note that his Honour’s decision in SZDXC was referred to with approval by Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs[13].  Her Honour commented:

    The information before the Tribunal was the same information the subject of the letter. That is, the Tribunal notified the appellant in writing that it considered the information insufficient and for that reason, without more information, the Tribunal would affirm the decision under review. The Tribunal’s written reasons, in effect, were a subsequent detailed analysis of and reasons for that decision.

    [13] [2005] FCA 1811 at [18]

  4. It is a very similar situation to that which is in the matter under review today. Whilst it is not directly relevant, it is unfortunate that the Applicant did not attend the Departmental interview. He may well have been incapacitated by an injury to a disc and have difficulty walking or standing. He has certainly told the Court that he obtained medical advice about that condition and was prescribed medication. A medical certificate and a request to the Department to postpone the interview would have assisted him to put his case to the Minister’s delegate.

  5. Even if that course were not successful in persuading the delegate to grant the application instead of refusing the application, there would have been more information available to the Refugee Review Tribunal. The Tribunal wrote to the Applicant in accordance with the requirements of s.425 of the Migration Act. As has been set out in SZDXC and SZBKB, the letter told the Applicant:

    The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.[14]

    [14] See Court Book at page 56.

  6. The letter went on to set out two ways in which the Applicant could provide further information to the Tribunal. First, he could attend the hearing which was scheduled and, if necessary, ask the Tribunal to hear evidence and arguments not only from him, but to hear evidence from some other person if such a person were available; but second, it was open to the Applicant to provide further documentary information either in English or in another language, but accompanied by a translation. The Tribunal’s letter specifically referred to the provision of further documentary evidence to the Tribunal.

  7. Unfortunately, none of these things occurred. The Applicant did intend to attend the hearing and signified his intention by completing a Response to Hearing Invitation and nominating that he required the assistance of an interpreter in the Urdu language. Unfortunately, as the Applicant has told the Court, he was in such pain from his injury which resulted in pain in the leg, that he was not able to attend the Tribunal hearing. He said that he had been prescribed medication but that made him sleepy or drowsy and he was confused. This was an unfortunate decision by the Applicant.

  8. In the circumstances, knowing that he was scheduled to attend the hearing but was prevented by a medical reason, it would have been open to the Applicant to ask the doctor for a medical certificate and then arrange to contact the Tribunal to indicate that he was prevented from attending the hearing for that reason. No doubt, the Tribunal would have required him to produce the medical certificate. In the circumstances, it would have been open to the Applicant to ask for an adjournment until a time when his medical condition did allow him to attend. Unfortunately, the Applicant did not contact the Tribunal at all to advise of his inability to attend.

  1. In the circumstances, the Tribunal did not commit any error when it proceeded to act under the provisions of s.426A of the Migration Act to deal with the application without offering the Applicant a further opportunity to attend. The reason for the Tribunal’s decision to affirm the delegate’s decision not to grant a protection visa was because the Tribunal had insufficient information to support the Applicant’s claim. It had no more information before it than it did when it forwarded the letter to the Applicant on 30th April 2009 inviting him to attend a hearing.

  2. In the absence of attendance by the Applicant, oral evidence and further documentary evidence, the Tribunal was no better off than it was before, and, in my view, it did not fall into any jurisdictional error when it decided that the information before it was insufficient to grant a Protection visa. 

  3. In the absence of a jurisdictional error, the Tribunal decision is a privative clause decision. That is defined under section 474 of the Migration Act. Private clause decisions are final and conclusive, and are not subject to orders in the nature of certiorari, which the Applicant seeks.

  4. The Applicant has asked to be given another opportunity to attend a Tribunal hearing; however, as the Court is not satisfied that the Tribunal fell into jurisdictional error, the Court cannot grant that request.  As I said, in the absence of jurisdictional error, the Tribunal decision is a privative clause decision.  The Court, then, does not have the power to make an order in the nature of certiorari to set the decision aside.  The application will be dismissed.

  5. There is an application for costs on behalf of the First Respondent, the Minister for Immigration and Citizenship. The costs are estimated at $3,000.00, which is an amount significantly below the amount prescribed by the scale in the Federal Magistrates Court Rules. My perusal of the Court File would indicate that it is an appropriate figure.

  6. The Applicant, however, has asked that the costs should be waived and that no order for costs should be made on the basis that he is unemployed and has no funds and is, therefore, unable to pay the costs.

  7. That may well be the case. That is not, however, a reason not to make a costs order, but it is a matter to be taken into account in allowing time to pay. I propose to allow three months to pay.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  20 October 2009


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