SZOZN v Minister for Immigration
[2011] FMCA 405
•30 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 405 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal – citizen of India claiming fear of persecution for reason of political opinion – where applicant did not attend Tribunal hearing – whether Tribunal failed to consider all aspects of the applicant’s claim. |
| Migration Act 1958 (Cth), ss.36, 91R, 362B, 422B, 425, 425A, 426A, 441A, 474, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 MZXTA v Minister for Immigration [2008] FMCA 1201 MZXTA v Minister for Immigration and Citizenship [2009] FCA 1186; (2009) 112 ALD 89 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZOZO v Minister for Immigration [2011] FMCA 323 |
| Applicant: | SZOZN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 219 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 May 2011 |
| Date of Last Submission: | 30 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Clayton Utz |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,130.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 219 of 2011
| SZOZN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He is applying for judicial review of a decision of the Refugee Review Tribunal made on 12th January 2011, affirming the decision of a delegate of the Minister for Immigration and Citizenship not grant him a Protection (Class XA) visa.
In his Amended Application, filed on 28th March 2011, the Applicant seeks the following:
(1)An order that the decision of the Tribunal or Minister be quashed;
(2)A writ of mandamus directed to the Tribunal or Minister, requiring them to determine the Applicant’s application according to law;
(3)(inappropriately) a declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the grounds of this application; and
(4)(equally inappropriately) an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
The third and fourth orders sought clearly do not apply.
The Court is conducting a judicial review of a decision of the Refugee Review Tribunal, so the reference to the Minister for Immigration and Citizenship in the Applicant’s proposed orders (1) and (2) is incorrect. The Court has no jurisdiction under s.476 of the Migration Act 1958 to review a decision of the Minister or the Minister’s delegate, because it is a “primary decision” (see s.476(2)(a)).
The reference to the “Independent Protection Assessment Reviewer” in the applicant’s proposed orders (3) and (4) is inappropriate. The Court is conducting a judicial review of a decision of the Refugee Review Tribunal, not an Independent Protection Assessment Reviewer.
The grounds upon which the Applicant relies are lengthy, consisting of three full paragraphs covering one and a half pages. The first ground begins:
That the applicant fears the persecution under section 91R of the Act…The applicants piece of evidence by way of claim, as not considered as per refugee law.
The rest of the Applicant’s Ground 1 and all of Ground 2 cover matters that go entirely to the factual merits of the Applicant’s refugee claim. The Applicant claims to have been a member of the All India Student Federation and a known activist of the party, which gives rise to his claimed fear of persecution.
In Ground 3 of the Application, the Applicant makes reference to what he considers to be the errors in the Tribunal decision. He also provides a justification of sorts for his non-attendance at the Tribunal hearing:
That no proper consideration under the requirements of the law has been given. Moreover the decision of the RRT is a mere repetition of the applicant’s evidence on the contrary RRT was bound to give a complete decision with reference to the issues raised by the applicant in his evidence given on the file…That mere non-attendance before the RRT is not mandatory as on the forms of respondents there is a provision that whether or not the applicant wants to attend the hearing, as such this cannot be made a point of rejection of my claim.
The Minister has filed a Response opposing the orders sought on the basis that:
The first respondent does not admit that there is any jurisdictional error in the decision of the second respondent.
Background
The Applicant arrived in Australia on 19th May 2008. He applied for a Protection (Class XA) visa on 11th June 2010.
The Applicant’s application for protection was based on the Convention ground of his political opinion. He provided a two and a half page typed statement with his application, in which he said:
I was very much interested in the political welfare of the Sikhs communities all over the India, as they were victimized by the Indian authorities, and our peoples were also killed by the Hindu extremists with the help of the Indian Army…
In other words I along with my other friends were the strong supporters of the Khalistan movement, as I am a religious Sikh by faith as a student my sympathies were with the Shiromani Akali (A) party which is based in the Amritsar…
As I and my other friends were branded that we are the supporters of the Khalistan Movement, the secret agencies followed us. As a matter of fact I used to be chased by the security agencies for a long times. I knew this fact as many a times I was interrogated by the security agencies. Similarly all the important members were also shadowed by the above agencies. I was arrested for the first time in the year along with my colleagues. We were very badly treated by the police, were handed over to the special branch of the Punjab Police consisting of the military intelligence officials.
We were detained under the law which was not challengeable in any court of law in India. We were interrogated that we have links with Pakistani intelligence namely ISI. We were made to undergo a lot of tortures, we were made to sleep on the ice blocks, both of us to be without food and water. We were made to awake all the times, when we use to sleep they use to bash us…
We had no alternative to survive in India, we decided to flee the country. I and my friend whose name is mentioned above[1]arrived on a student visa and came to Australia. I had a real chance of being killed by the hands of the authorities in India, based on our political opinions.[2]
[1] Not published
[2] See Court Book at pages 27-29
The Department of Immigration and Citizenship wrote to the Applicant on 28th September 2010, inviting him to attend an interview with an officer of the Department. The letter invited the Applicant to telephone the Department on a particular telephone number by close of business on 22 October 2010 to arrange the interview.[3]
[3] Court Book 35
The Applicant did not telephone the Department to arrange an interview.
On 26th October 2010 the Department wrote to the Applicant advising him that his application for a Protection Visa had been refused. In the Protection (Class XA) Visa Decision Record dated 25 October 2010, the Minister’s delegate found that the Applicant was a citizen of the Republic of India who was outside that country. However, the delegate was not satisfied that the applicant had provided any evidence to substantiate his claim for protection.
The delegate stated:
The applicant did not contact the Department to arrange an interview, or to advise that there was a reason why he was unable to attend the interview…
Whilst the applicant’s written claims suggest a convention nexus, he did not avail himself of the opportunity to provide supporting evidence of his claims. If interviewed the applicant would have been required to satisfy me that he feared harm for a Convention related reason. I therefore cannot be satisfied that he genuinely fears harm for a Convention related reason.[4]
[4] Court Book 45
The delegate refused to grant the Applicant a Protection (Class XA) visa.
Application to the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 22nd November 2010.
The Tribunal wrote to the Applicant on 9th December 2010, advising him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. Accordingly, the Tribunal invited the Applicant to attend a hearing at 11:30 am on 12 January 2011.[5]
[5] Court Book 59
The Applicant did not reply to the Tribunal’s letter, nor did he attend the hearing on 12th January 2011.
In the Tribunal Decision Record, the Tribunal noted the Applicant’s failure to attend:
The applicant did not attend the hearing on 12 January 2011 or contact the Tribunal to explain his failure to attend. In these circumstances, the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.[6]
[6] Court Book 73 at paragraph [24]
In its Findings and Reasons the Tribunal stated:
Without the opportunity to explore his claims at a hearing, the Tribunal is unable to be satisfied on the evidence before it that the applicant will suffer serious harm if he returns to India and, as such, is not satisfied that he has a well-founded fear of being persecuted for reasons of political opinion or for any other Convention reason, now or in the reasonably foreseeable future.[7]
[7] Court Book 73 at [26]
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in subsection 36(2)(a) of the Migration Act for a protection visa.
The Tribunal affirmed the decision of the delegate not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant applied to this Court for review of the Tribunal decision by filing an application and a supporting affidavit on 10th February 2011. The Applicant stated in his affidavit:
1. That no proper consideration under the requirements of the law has been given. Moreover in the decision of the RRT it is a mere repetition of the applicant’s evidence on the contrary RRT was bound to give a complete decision with reference to the issues raised by the applicant in his evidence given on the file. Which has resulted in gross violation of recognised principles of the natural justice. Moreover there has been no reference made regarding the persecution coupled with the harassment was given in the decision.
2. That the elements of the well founded fear coupled with the real chance of being killed were totally ignored rather they have not mentioned in the decision under this application for judicial review. There is a jurisdictional and legal error arises in this application.
The decision requires to send the application of the applicant back to the RRT.
The Applicant filed his Amended application on 28th March 2011.
The Minister’s Lawyers filed the First Respondent’s Outline of Submissions on 20th May 2011.
The Applicant attended Court today and made oral submissions with the aid of an interpreter in the Hindi language.
Submissions
The Applicant confirmed that he had not attended the Tribunal hearing, saying that it was optional and someone had misguided him. He also confirmed that he had not attended the interview at the Department of Immigration and Citizenship.
The Applicant told the Court that the Tribunal had not considered all the facts of what had occurred in India, both before he was born and quite recently. On being asked why he had not given this information to the Tribunal, he said that he decided to give the information to the Court. The Applicant was informed that the Court hearing was not an alternative to the Tribunal hearing, but a judicial review of the Tribunal decision. The Court could not consider fresh evidence.
The Applicant confirmed that he had received the Tribunal’s letter inviting him to the hearing but could not recall the contents of it.
It was submitted for the Minister that there was no jurisdictional error. The grounds of review were not responsive to the Tribunal’s findings. The Tribunal could not make a decision favourable to the Applicant on the scant material before it, which was why the applicant was invited to a hearing. However, the Applicant did not avail himself of that opportunity to be heard.
The Minister relied on the decision of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[8] where their Honours commented that where an applicant fails to appear before the Tribunal and his or her outline of the basis for fearing persecution is not sufficient to satisfy the Tribunal that the applicant has a well-founded fear of persecution, the inevitable consequence will be the rejection of the application.
[8] [2004] FCAFC 287
The Minister submitted that s. 422B of the Act provides that Division 4 of Part 7 is taken to be an exhaustive statement of the natural justice hearing rule.
It was further submitted that the Tribunal had complied with the requirements of ss. 425(1), 425A(1), 425A(2), 441A(4), 425A(3) and Regulation 4.35D of the Migration Regulations 1994. Further, s. 441C(4) provides that where the Tribunal gives a document to a person by the method specified in s. 441A(4), then the recipient is deemed to have received the document 7 working days after the date of the document. The application was deemed to be received seven working days from the date of the document, 9 December, so it was deemed to have been received on 20th December. The statutory minimum period of notice of 14 days would therefore expire on 4th January 2011, well before the hearing on 12th January. The Tribunal’s invitation was sent by registered post to the address given to the Tribunal by the Applicant.
The Tribunal had complied with s. 426A which gives the Tribunal a wide discretion (MZXRTA v Minister for Immigration[9] at [71]; affirmed on appeal in MZXTA v Minister for Immigration and Citizenship[10]).
[9] [2008] FMCA 1201
[10] [2009] FCA 1186; (2009) 112 ALD 89
There was an anomaly in the Tribunal’s decision record, where the Tribunal referred to s. 362B of the Act instead of s. 426A (which has the same effect). It was submitted that this was no more than a clerical or typographical error and not a jurisdictional error, referring to an earlier decision of mine in SZOZO v Minister for Immigration[11] at [41].
[11] [2011] FMCA 323
Conclusions
Under s.474 of the Migration Act, decisions of the Refugee Review Tribunal are final. A privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court. It is only where jurisdictional error has been established that such a decision can be described as not being a decision under the Migration Act and therefore not caught by the privative clause (see Plaintiff S157/2002 v Commonwealth[12]).
[12] (2003) 211 CLR 476
The Applicant has claimed that the Tribunal did not consider his application “as per refugee law” but has given no details of any particular section or regulation that has not been complied with. He claims that his application was not given “proper consideration” but has not identified any key element of his claim that has not been considered by the Tribunal. It is not the function of the Tribunal to carry out its own investigation of the applicant’s claim.
The Applicant claims a “gross violation of recognised principles of natural justice” but has not specified what that violation might be. In any event, s. 422B of the Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule.
There is nothing to show that the Tribunal committed any jurisdictional error. There is no failure to comply with ss. 425 or 425A.
There is an anomaly in that the Tribunal stated at paragraph [24] of the Decision Record that:
…the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.[13]
[13] Court Book 73 [24]
The Tribunal has referred to the wrong section of the Act. Section 362B is to be found in Part 5, Division 5 of the Act and applies to the Migration Review Tribunal, not the Refugee Review Tribunal. The section that refers to the Refugee Review Tribunal is section 426A. However, as I pointed out in SZOZO v Minister for Immigration & Anor[14] at [41], the sections are identical in effect and I am satisfied that this is no more than a typographical or clerical error. Accordingly, whilst there may be an error of law, it does not constitute a jurisdictional error.
[14] [2011] FMCA 323
The Applicant did not attend the hearing to which he was invited. Whilst he claims in his Amended Application that attendance at a Tribunal hearing is not mandatory and non-attendance cannot be a reason for rejection of his claim, this submission is misconceived. The Tribunal did not reject his application because he did not attend the hearing; it rejected his application because, by not attending and giving evidence, the Applicant did not give the Tribunal any further information to support his claim.
The Tribunal had already made it “pellucidly clear” in its letter to the Applicant of 9th December 2010 that it was unable to make a decision in his favour on the basis of the information before it, and “when the (Applicant) failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application” (SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[15] per Hely J at [16]; see also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs[16] per French, Emmett and Dowsett JJ at [5]; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[17] per Bennett J at [17] and [32]).
[15] [2005] FCA 1306
[16] [2004] FCAFC 287
[17] [2005] FCA 1811
In this case, the Tribunal exercised its discretion to make its decision on the review without taking any further action to allow or enable the applicant to appear before it. The discretion granted to the Tribunal under s. 426A (the correct section) is a wide one (see MZXTA v Minister for Immigration & Anor[18] per Turner FM at [71]) and there is nothing to show that the Tribunal’s discretion miscarried.
[18] [2008] FMCA 1201
There is no jurisdictional error. The Tribunal decision is a privative clause decision, as defined by subsection 474(1) of the Act. It is not subject to the orders in the nature of certiorari or mandamus that the Applicant seeks.
It follows that the Application will be dismissed.
Costs usually follow the event. I will hear submissions on costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 31 May 2011
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