SZOUH v Minister for Immigration

[2011] FMCA 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOUH v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 185

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal’s conclusions reasonably open to it to make – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.414, 422B, 425, 425A, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg. 4.35D

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant: SZOUH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2514 of 2010

Judgment of: Nicholls FM

Hearing date: 4 March 2011

Date of Last Submission: 4 March 2011

Delivered at: Sydney

Delivered on: 4 March 2011

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr D Smith

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 19 November 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2514 of 2010

SZOUH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made on 19 November 2010 under s.476 of the Migration Act1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 October 2010, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is an Indonesian national who last arrived in Australia on 11 January 2010 and applied for a protection visa on 22 April 2010. A copy of that application is before the Court in the bundle of relevant documents filed by the Minister in compliance with orders made at the first Court date in this matter (Court Book – “CB” – CB 1 to CB 24).

Claims to Protection

1. The applicant claimed to fear persecutory harm in Indonesia from “local” Indonesians because of his Chinese ethnicity.

The Delegate

1. This application was refused on 2 July 2010. The applicant had been invited to attend an interview with the Minister’s delegate. He did not do so. He provided no explanation for his failure to attend (CB 52.7). 

2. The delegate found the applicant’s claims to be: “…vague and lacking in specific details to determine why the applicant is at risk of harm in Indonesia” (CB 52.4).

3. Given the applicant’s non-attendance at the interview, the delegate was left in a position of not being able to be satisfied that, in effect, the applicant met the definition of “refugee” as set out in  Article 1A(2) of the Refugees Convention. 

The Tribunal

1. The applicant applied for review to the Tribunal on 3 August 2010 (CB 55 to CB 58). The applicant provided nothing further to the Tribunal in support of his claims. 

2. The Tribunal wrote to the applicant by letter dated 30 August 2010. On the best evidence available, it was sent by registered post to the address given by the applicant for the purpose of receiving correspondence. The Tribunal’s letter advised the applicant that it could not make a decision favourable to him on what had been put before it, and invited him to a hearing to give evidence and present arguments in support of his claims. The Tribunal invited a response from the applicant, and provided a form for that purpose as to his availability and/or his intention to attend the hearing (CB 67 to CB 73).

3. The hearing was scheduled to take place on 11 October 2010 (CB 67). No response was received from the applicant. In fact, nothing was heard from the applicant. The applicant did not appear at the hearing at the appointed time. No explanation was given to the Tribunal for this failure. (See [25] at CB 80 to [30] at CB 81 of the Tribunal’s decision record.)

4. As the Tribunal had forewarned the applicant, it proceeded to make a decision pursuant to s.426A of the Act. The Tribunal noted the statement attached to the protection visa application setting out the applicant’s claims ([35] at CB 81). It found these to be “unsubstantiated assertions”, and to suffer from “insufficient particulars” ([36] at CB 81).

5. The Tribunal found that, in the absence of the applicant from the hearing, it was unable to assess the credibility of the applicant’s claims. In these circumstances, the Tribunal was unable to reach the requisite level of satisfaction that Australia owed protection to the applicant and, therefore, it affirmed the delegate’s decision.

Application to the Court

1. The application to the Court is in the following bare terms:

   “1. Refugee Review Tribunal has failed to consider the conflicts between native Indonesian and Indonesian Chinese.

   2. Tribunal member didn’t take into consideration that racism is the major problem existed in Indonesia for long time.

   3. The making of the decision was an improper exercise of the power conferred by the enactment.”

Before the Court

1. Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Indonesian language. Mr D Smith appeared for the respondent Minister.

2. I should note that at the first Court date the applicant applied to participate in the free legal advice scheme available to applicants such as the one before me today. The Registry of the Court referred the applicant to a lawyer on the panel of that advice scheme.

3. When asked to address the Court this morning in support of his application, the applicant could only state that he did not feel safe in his country and that he had faced discrimination, and would face discrimination if he were to return.

4. Notwithstanding that the applicant would have had the opportunity to have explained to him the nature of the proceedings before the Court and the difference between the powers of the Tribunal and this Court, I attempted to explain this situation to the applicant and, in particular, to focus the applicant’s mind on the relevant issue for this Court today. Namely, whether there was legal error in what the Tribunal had done. The applicant said he had nothing to say in this regard.

Consideration

1. Grounds one and two of the application misunderstand the statutory duty imposed on the Tribunal. That is, a duty to properly review the delegate’s decision (s.414 of the Act). In essence, the Tribunal is ultimately required to consider the applicant’s claims to be a refugee and to require protection in Australia, and to do so in the context of whether it can reach the requisite level of satisfaction that, in effect, the applicant meets the definition of refugee that is set out in the Refugees Convention.

2. The applicant would have been on notice following the delegate’s decision that his written claims needed to be augmented with further detail and particularity before any protection visa would be granted to him. If the applicant did not comprehend this from the delegate’s decision record, it was certainly made clear in the Tribunal’s letter inviting him to a hearing.

3. His unexplained failure to attend the Tribunal hearing, and his failure to put anything further to the Tribunal, left the Tribunal in the position where the vague, unsubstantiated, unparticularised claims made by the applicant continued to be such as to prevent it from reaching a conclusion favourable to him.

4. The Tribunal cannot consider allegations of ethnic conflict, discrimination or racism in the abstract. The Tribunal’s task was to consider whether this applicant had a well-founded fear of persecution for a Convention reason if he were to return to Indonesia. This means that it is to the applicant’s circumstances, as against this claimed background, to which the Tribunal must have regard.

5. The Tribunal well understood the applicant’s bare claims. These were set out in its decision record ([35] at CB 81). In its decision record it also explained why it was unable to be satisfied that the applicant met the primary requirement to be granted the protection visa ([36] at CB 81). The Tribunal explained that the lack of detail meant that critical findings of fact concerning the applicant’s circumstances could not be made, particularly as the applicant did not attend the hearing.

6. I find that, on what was before it, the Tribunal’s conclusion was reasonably open to it to make. In these circumstances, there was no requirement for the Tribunal to further consider ethnic tensions and conflicts in Indonesia. Further, if for no other reason than, given its finding that the applicant had not established his ethnicity as being Chinese, any such detailed consideration, as now asserted by the applicant, could not have assisted him in any event.

7. Grounds one and two, therefore, are not made out.

8. To say that ground three of the application before the Court today is vague and unparticularised is, with respect, being generous.

9. The Minister submits in written submissions that it should be construed as an allegation of some breach of a statutory duty in relation to procedural fairness obligations. In this regard, therefore, this is a case to which s.422B of the Act applies, which makes the matters that are set out in Div.4 of Pt.7 of the Act, and the matters that are dealt with in that Division, the exhaustive statement of the natural justice hearing rule (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).

10. Having regard, therefore, to this part of the Act, it is clear the applicant was invited to a hearing pursuant to s.425. The invitation complied with, and was consistent with, s.425A, s.441A, s.441C and reg.4.35D(b) of the Migration Regulations 1994 (Cth). In particular, the applicant was given the appropriate period of notice. The letter contained all the relevant statutory and regulatory requirements.

11. The letter contained a statement as to the effect of s.426A of the Act. The applicant was on notice that the Tribunal may proceed to a decision if he did not appear at the hearing.

12. I should just note that the material before the Court makes reference to the Tribunal’s letter of invitation not having been returned to the Tribunal as “undeliverable”. But in any event, it is the case that, once the Tribunal complied with all the relevant statutory and regulatory requirements, the applicant is deemed to have received the letter (s.441C(4)(a)).

13. What remains is that, not only did the applicant not attend the hearing before the Tribunal, but made no attempt to explain to the Tribunal, nor for that matter to this Court, his failure or inability to attend. I cannot see error in the way the Tribunal exercised its discretion pursuant to s.426A to proceed in these circumstances.

14. As the Minister submits, the discretion vested in the Tribunal has been described as a wide discretion. The Tribunal gave cogent reasons for proceeding in the way that it did. The discretion was clearly not exercised in any arbitrary or capricious manner. 

15. It is the case that the Court cannot review the “merits” of the Tribunal’s decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481). In the circumstances, its conclusion that the applicant was not a person to whom Australia owed protection was open to it on what was before it. The Tribunal complied with all the relevant procedural fairness obligations as set out in the Act.

16. But I should also note that, even if the Court were to apply the principles of common law procedural fairness to this case, again no error is revealed on the part of the Tribunal. The applicant was on clear notice of what he was required to do if he wanted to achieve a favourable outcome to his application. He chose to do nothing. The applicant applied for a protection visa. He did not attend the interview before the delegate when invited to do so. Despite being on notice as to the importance of the Tribunal hearing, the applicant made no response to the letter of invitation and did not attend. He made no attempt to submit anything to the Tribunal beyond his bare application seeking review. It must be said that it is a matter of some concern that, even now, beyond three unparticularised and general assertions, the applicant has put nothing before the Court. I emphasise that the applicant, for whatever reason, has done, if anything, very little to propel his stated intention of seeking protection in Australia.

17. In respect of the Tribunal’s decision, I cannot see any failure, whether we are talking of procedural fairness under the Act or procedural fairness at general law. Simply, the applicant’s failure to attend before the Tribunal, having been put on notice of the critical importance of that opportunity, can only lead to what has been described by a Full Federal Court as the “inevitable consequence” of the affirmation of the delegate’s decision (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287).

18. The applicant’s failure to attend the hearing meant that the Tribunal was unable to reach the requisite level of satisfaction that he met the definition of “refugee”. There is no error that I can see in what the Tribunal has done in this regard.

19. I must say that it is not presumptuous of me to note that the Court understands the difficulties faced by people who come to this country claiming to seek protection, and the difficulties that they face in such an application. But in the circumstances of this case it is difficult to avoid the inference that the application to the Court is an abuse of the Court’s processes. Given the failure to attend at either of the two opportunities provided previously before the appropriate bodies to assess his claims to be a refugee; given the opportunity for access to legal advice provided to the applicant by the Australian taxpayer; and given the paucity of the legal grounds, if I can call them that, put before the Court, it is difficult to escape the conclusion that the applicant made his application to this Court for the purpose of extending his stay in Australia, rather than any genuine attempt to assert legal error on the part of the Tribunal.

Conclusion

1. It is the case that, for the applicant to succeed before the Court today, the Court would need to discern, at the very least, jurisdictional error in what the Tribunal has done. No such error is evident in the Tribunal’s decision. I will, therefore, make an order dismissing the application that has been made to the Court.

Costs

1. It is appropriate that an order for costs be made in this matter. For whatever reason, the applicant has brought the Minister to this Court. It was the applicant’s right to do so, but equally it was the Minister’s right to respond to the application. In doing so, the Minister incurred legal costs.

2. The applicant says that he does not have any money and would need time. These are not sufficient reasons not to make the order. In my view, a lack of funds, and even an immediate lack of funds, is not a sufficient reason such that the order should not be made in the ordinary way. If the applicant’s comment was intended as some acquiescence to the order being made but was requesting more time for payment, then that is a matter for the applicant and the Minister’s representatives to negotiate.

3. As to the amount, I note with reference to the relevant Schedule to the Rules of this Court that the amount sought is below the amount set out in that Schedule as applicable to matters of this type. But in any event, I am quite separately satisfied, having regard to the work that has actually been done by the Minister’s legal representatives, that the amount sought is a reasonable amount. I will make the order in that amount.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  21 March 2011