SZOBY v Minister for Immigration
[2010] FMCA 183
•11 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOBY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 183 |
| MIGRATION – Refugee Review Tribunal – applicants failed to attend hearing before Refugee Review Tribunal – whether Refugee Review Tribunal complied with statutory scheme in inviting applicants to come to a hearing. |
| Migration Act 1958 (Cth), ss.65(1)(b), 425, 425A, 426A, 441A, 441C(4) |
| Minister for Immigration and Multicultural Affairs v SZGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 |
| First Applicant: | SZOBY |
| Second Applicant: | SZOBZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 8 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 March 2010 |
| Date of Last Submission: | 11 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2010 |
REPRESENTATION
| The Applicants appeared in person assisted by an Indonesian interpreter |
| Solicitors for the Respondent: | Ms K. Whittemore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 8 of 2010
| SZOBY |
First Applicant
| SZOBZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 30 November 2009. The applicants have confirmed to the Court this morning that the second named applicant is the wife of the first named applicant, and her claims depend on those of her husband. The applicants claim to be citizens of Indonesia and of Chinese ethnicity. The applicants arrived in Australian on 10 May 2009, having departed legally from Polonia on passports issued in their own names, and class TU 572 student visas, issued on 27 April 2009.
On 17 June 2009, the first named applicant (“the Applicant”) lodged an application for a protection visa. The second named applicant lodged an application as a member of the family unit of the Applicant. Both applications were received on 17 June 2009. The Applicant provided, a statement in support of his protection visa application, also received by the Department of Immigration and Citizenship on 17 June 2009, in which he made the following claims:
“I, [the Applicant] was born in Jakarta, Indonesia on 12 February 1984. I came from a Chinese family, an ethnic group which had been targeted by the native Indonesian. We know that there was no security for ethnic Chinese to stay in Indonesia. Human rights seems had been neglected.
As we know, on 13 and 14 May 1998 particularly in Jakarta was the beginning of the disaster and now Indonesia is politically unstable. My parents and I were afraid to go outside because our ethnic is Chinese. I was only 14 years old that time. But I still remember many Chinese Indonesian were kill in that year. No one protected us. Many female Chinese Indonesian were raped during the riot. After the riot, we are still discriminated in Indonesia. Even the department stores, which belong to Chinese, were burnt, the security was not in function at all. Every one cared only to save his/her own life, it seems that the law is no longer in effect.
Now, my wife and I do not dare to go back again to Indonesia because we are Chinese. We will be targeted and even killed. All of the incidents which were beyond my expectation and could not be guessed can happen anytime. We would like to stay in Australia as refugee.”
On 30 July 2009, the applicants were invited to attend an interview with a delegate of the Minister of Immigration and Citizenship on 31 August 2009; however, neither applicant attended that interview. The delegate found the Applicant’s statement to be generalised, and found inconsistencies between the Applicant’s claims and his personal details, as stated in his protection visa application. The delegate stated that these were issues that it would have explored with the Applicant, had he attended an interview. On the information before the delegate, the delegate was not satisfied that the applicants were persons to whom Australia has protection obligations and refused the visa applications.
On 8 October 2009, the applicants lodged an application for review of that decision with the Refugee Review Tribunal (“the Tribunal”). The applicants identified their residential address as an address in George Street, Sydney. However they nominated an address for correspondence as “8/226 Elizabeth Street, Surry Hills”. Next to the box for the giving of this address for correspondence, the Application for Review form states that, if this box is marked, all correspondence would be sent only to that address.
On 28 October 2009, the Tribunal wrote to the applicants at the address identified for correspondence, inviting the applicants to come to a hearing to give evidence and present arguments relating to the issues arising in their case. The letter informed the applicants that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter invited the applicants to send to it immediately any additional information or documents that they wished the Tribunal to consider. The applicants were invited to attend the hearing on 30 November 2009. The Tribunal’s letter informed the applicants that they should contact the Tribunal immediately if they were unable to attend the hearing, because if they failed to attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear before it.
The Tribunal noted in its decision record that the applicants did not reply to that letter and did not attend the hearing at the scheduled time. In the circumstances, the Tribunal proceeded to make a decision on the material before it, without taking any further step to invite the applicants to come to another hearing.
The Tribunal then had regard to the only information provided by the applicants in support of their application for a protection visa, being the statement received by the department on 17 June 2009.
The Tribunal accurately summarised those claims. The Tribunal noted that the passports of the applicants confirmed that they were probably ethnic Chinese/Indonesians as claimed. However, the Tribunal also noted that the passport of the second applicant showed that she had departed and re-entered Indonesia a number of times in recent years. The Tribunal noted that the applicants had provided no additional information to the Tribunal and that both had entered Australia on student visas, which the Tribunal found would have taken some time to organise and involved considerable expense.
The Tribunal found the applicants’ claims to be vague and unparticularised and that their silence in support of their claims had not assisted them before the Tribunal. The Tribunal noted that it was not required to conduct investigations on behalf of applicants to make their case for them. The Tribunal found that it could not be satisfied that the applicants face a real chance of Convention-related persecution in Indonesia “…for want of more detailed evidence from the Applicants, and not having the Applicants present to give evidence and provide arguments”.
The Tribunal concluded that it was not satisfied that the applicants were persons to whom Australia has protection obligations and accordingly affirmed the decision under review.
On 4 January 2010, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision and identified their grounds as follows:
“1. The Tribunal failed to consider the whole of my case.
2. It is not reasonable for the Tribunal to make the finding that sexual harassment for me was not serious persecution.
3. The Tribunal did not adequately consider that I would be put in danger if I went back to Indonesia.”
On 12 February 2010, the applicants attended a directions hearing before me in respect of their application. On that occasion, I explained to the applicants that this Court had no power to interfere with the decision of the Tribunal unless the Court was satisfied that the Tribunal’s decision was affected by a mistake that went to the jurisdiction of the Tribunal. I also explained to the applicants that the present grounds in their application made bare assertions unsupported by particulars and did not disclose errors capable of review by this Court. I explained to the applicants the costs consequences that may flow to them if they were unsuccessful in their application and provided them with a copy of the cost schedule of this Court. The applicants then confirmed to me that they wished to continue with their application.
Directions were then made giving the applicants leave to file an amended application giving complete particulars of each ground of review relied upon by 1 March 2010 and also to file by way of affidavit any evidence upon which they rely by 1 March 2010. They were also directed to provide written submissions in support of their application by 5 March 2010.
The applicants were also referred to the Court’s panel advice scheme for an opportunity to participate in that scheme and meet with a panel adviser and receive free legal advice. The panel adviser was unable to contact the applicants, however provided written legal advice to the applicants on 18 February 2010. The applicants were also provided by the Court a document headed in their own language. The document had the contact details of legal services providers and interpreting and translation services.
The applicants were unrepresented before this Court today. At the commencement of the hearing, the applicants confirmed that they had not filed any further documents in support of their application and that they relied on the grounds contained in their application filed on 4 January 2010. The grounds of the application were interpreted for the assistance of the applicants and the applicants were invited to say whatever they wished in support of the grounds of their application and in support of their application generally.
For the first time, the applicants stated that they had not received the invitation from the Tribunal to come to a hearing. The Applicant posited various reasons why they may not have received it, including that they may not have been at the address; that the person who resided there may not have given it to them; that the Applicant may not have been in Sydney; or, that the letter may have been sent and stolen. However, there was no evidence whatsoever before this Court to support the Applicant’s speculative assertions.
The applicants otherwise made no relevant submissions in support of the grounds of their application or in support of their application generally.
The first respondent read the affidavit of Katherine Whittemore, sworn 28 January 2010, which annexed a registered post record detail in respect of the letter sent by the Tribunal, dated 28 October 2009, inviting the applicants to come to a hearing. I note that the address identified in the registered post record is the address identified by the applicants for correspondence in the review application. It has the name of the Applicant as addressee. Importantly, the registered post number on the record is the same as the registered post number on the copy of the Tribunal’s letter provided in the bundle of relevant documents, marked Exhibit 1R. The date of the registered post record is 28 October 2009, being the same date as the Tribunal’s letter
The Court is satisfied that the letter, dated 28 October 2009, was sent to the applicants by facsimile transmission in accordance of s.441A of the Migration Act 1958 (Cth) (“the Act”). The letter was sent within three days of the date of the letter, namely 28 October 2009, in accordance with s.441C(4) of the Act. The letter invited the applicants to appear before the Tribunal on a specified day, time and place. In the circumstances, the letter complies with the requirements of ss.425 and 425A of the Act.
As stated above, the letter was sent in accordance with the statutory scheme of the Act and therefore, pursuant to s.426A of the Act, the Tribunal was entitled, to proceed to make its decision without taking any further action to allow or enable the applicants to appear before it.
In the circumstances, there was no error on the part of the Tribunal in proceeding to make its decision without taking any further action to allow or enable the applicants to appear before it.
As stated above, the Tribunal accurately summarised the applicant’s statement provided in support of his protection visa application, that being the only information provided by the applicants in support of their application.
The Tribunal found the claims to be vague and unparticularised. That finding is similar to the finding made by the delegate that the claims were generalised. That finding was open to the Tribunal on the material before it.
It is well established that the Tribunal’s duty is to review an applicant’s claims rather than to inquire and the Tribunal is under no duty to inquire (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [43] (per Gummow and Hayne JJ). Further, there was no failure by the Tribunal to make an obvious inquiry about a critical fact apparent from the claims made by the applicant that would have enlivened in the Tribunal any further duty to inquire, as suggested may arise in certain circumstances in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].
It may well be that the applicants did not receive the Tribunal’s invitation. However, that, by itself, is not sufficient to establish error on the part of the Tribunal.
As stated above, the applicants have not provided any evidence in support of their statement that they did not receive the letter, other than having posed various hypotheses. As stated above, the letter of invitation was sent in accordance with the statutory scheme. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was unable to establish the relevant facts and made no findings either accepting or rejecting the claims. That approach was open to the Tribunal on the material before it (Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [17] per the Court: Black CJ, Sundberg and Bennett JJ).
In the circumstances, the Tribunal was not satisfied that the applicants met the criteria for being refugees. Section 65(1)(b) of the Act makes clear that, if a decision maker is not satisfied that the statutory criteria is met, then a protection visa cannot be granted.
In the circumstances, the Tribunal complied with its obligation under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error, and is therefore a privative clause decision.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 17 March 2010
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