SZOZD v Minister for Immigration

[2011] FMCA 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZD v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 382

MIGRATION – Application for review of RRT decision – where applicant did not appear before RRT – whether RRT exceeded its powers in proceeding under s.426 – merits review – application dismissed.

Migration Act1958 (Cth) s.426A

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: SZOZD

First respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 189 of 2011

Judgment of: Raphael FM

Hearing date: 18 May 2011

Date of Last Submission: 18 May 2011

Delivered at: Sydney

Delivered on: 18 May 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. The Applicant pay the First Respondent’s costs assessed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 189 of 2011

SZOZD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on

   
   

   12 June 2010, and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 21 July 2010.  On

   
   

   19 October 2010, a delegate of the Minister refused to grant a protection visa, and on 9 November 2010 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant provided the Tribunal and the Minister’s delegate with a lengthy statement as to why he believed he was a person to whom Australia owed protection obligations [CB 27-30].

2. The Tribunal had written to him on 30 November 2010 advising him that it had considered that material but was unable to make a favourable decision on that information alone [CB74]. The Tribunal appointed a hearing on 11 January 2011 and invited the applicant to attend. The applicant did not respond to the hearing invitation and did not appear in the hearing room at the appointed time. The Tribunal telephoned the applicant, but there was no response. As the Tribunal had no other way of contacting the applicant, it considered its position and determined to proceed with its determination pursuant to s.426A of the Migration Act1958 (Cth) (the ‘Act’).

3. In its findings and reasons the Tribunal set out the nature of the applicant’s claims which appeared to arise out of his religion as a Muslim from Ahmedabad in Gujarat State, India.  The applicant claimed that as a leader of the Muslim community in his hometown he had, over a period of time, been exposed to persecution by Hindu fundamentalists: particularly those from the BJP, the RSS, and the Hindu Shave Sana.  The applicant is a lawyer; he claimed that he had received persecution from Hindu lawyers as a man who stood up for the rights of Muslim lawyers.

4. The applicant had taken up a business occupation and spent considerable amount of time in Thailand, where it appears that he ran a store.  But the store and his stock were destroyed in the ‘Red Shirt’ riots that took place in Bangkok.  The Tribunal, in considering the applicant’s claim, said at [35-36 CB 89]:

   “As the applicant failed to attend the hearing he was invited to, the Tribunal was not able to explore his claims with him in more detail.  In particular, it could not explore why he claimed he had a fear of harm now in Gujarat State, India, nor could it explore with him when he left India and why, or his claims of the persecution of his father and family generally.  Neither could it explore how many times he had returned to India since first leaving, or why he returned, or what had happened on those occasions, or why he returned to Vesna in Gujarat State in the recent past (March 2010) if he was at risk of serious harm there, and was even afraid to go to Gujarat airports.

   The Tribunal could not explore with the applicant why he did not seek protection in any other of the countries he had visited in the past, after having to leave India because of discrimination, intimidation and physical harassment and assault.”

5. The Tribunal also noted other matters which it could not explore with the applicant, including the possibility that some evidence he had produced consisted of a fraudulent or untruthful claim.  Finally, the Tribunal noted that it was unable to explore with the applicant the possibility that he might be able to relocate within India, given that his evidence of serious harm centred on his past activities in Gujarat State alone.

6. On 7 February 2011, the applicant filed an application with this court, and on 28 April 2011, he provided the court with an amended application, which had seven grounds.  I do not consider that it is necessary or illuminating to set out these claims (which are lengthy) in detail because they do not go to whether or not the Tribunal made an error of law in the manner in which it reached its decision, but rather dispute the decision itself.

7. The applicant appeared before me today.  It would appear that he received the Tribunal’s invitation to attend the hearing but declined to do so on the basis that he had heard through friends that the Tribunal made unfavourable decisions.  He also heard through friends that he was likely to be arrested at the Tribunal and placed into custody.  He did not advise the Tribunal that this was the reason he proposed not to attend.  He told me that he intended to put his case to the court because he had more faith in a court process rather than a Tribunal process.

8. It would appear from this statement that the applicant has totally misunderstood the nature of an application for judicial review.  In a similar case to this; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86, Allsop J said (at [6]-[7]):

   “My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.

   Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.”

9. His Honour also opined in SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 as to the meaning of jurisdictional error. His Honour stated (at [9] – [11]):

   “What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task.  That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with…

   … factual error is rarely reflective of jurisdictional error.  There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task.  There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.

   Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power.  The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error.”

   The matters raised by the applicant in his statements and in his application to this court are all matters of a factual nature.

10. I am also satisfied that the Tribunal did not exceed its powers in relation to its decision to proceed under section 426A. The Tribunal’s duty is to ensure that the applicant has received (as that is interpreted in the Act) a proper invitation to appear, and this was done.  There is no obligation on the Tribunal to make any inquiry as to the failure on the part of an applicant to appear; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

11. In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 the Full Bench, French, Emmett, and Dowsett JJ, said (at [5]), in relation to another case where an applicant had not attended before the Tribunal:

    “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information.  Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China.  Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”

12. In the instant case a similar process was followed.  The applicant did not attend before the Tribunal.  I am quite satisfied that the Tribunal’s decision was an inevitable consequence thereof.  The applicant has not provided the court with any basis upon which a jurisdictional error can be made out.  His grounds for not attending before the Tribunal were misconceived.  This court is not in a position to provide him with the opportunity that he wishes in the absence of any failure on the part of the Tribunal to deal with his case according to law. 

13. I dismiss the application and order that the applicant must pay the first respondent’s costs assessed in the sum of $3,100.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  24 May 2011