SZOZO v Minister for Immigration
[2011] FMCA 323
•1 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 323 |
| MIGRATION – Visa – protection visa – review of Refugee Review Tribunal decision – where applicant did not attend Tribunal hearing. |
| Migration Act 1958 (Cth), ss.36, 362B, 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 & Anor [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 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 |
| Applicant: | SZOZO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 220 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 April 2011 |
| Date of Last Submission: | 1 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Solicitor for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $1,700.00.
I direct that the name of the person referred to by the Applicant in his submission being an applicant for a Protection Visa not be published in the transcript.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 220 of 2011
| SZOZO |
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 to grant him a Protection (Class XA) visa.
In his Amended Application, 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)(Curiously) 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 curiously) 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.
As can be seen, several of the orders sought are inappropriate.
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” (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 and relate mainly to the factual merits of the Applicant’s refugee claim. The first ground begins:
That the learned member of the RRT while deciding the applicant’s application only discussed the relevant law and procedures and has cited many authorities of the Honourable High Court.
The balance of the first paragraph, and all of the second and third paragraphs of the grounds, refer to the Applicant’s claim for protection on the basis of his being a member of the All India Sikh Federation “lawfully struggling for the creation of a Sikh Homeland known as Khalistan”.
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 17th June 2010.
His application for protection was based on the Convention ground of his political opinion, as was made clear in the three page typed statement he provided with his application. The Applicant claimed that:
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 people were also killed by the Hindu extremists with the help of the Indian Army…
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 time…
We were very badly treated by the police. We 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 the Pakistani intelligence namely ISI…
We had no alternative to survive in India, we decided to flee the country. I and my friend whose name is mentioned above 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…[1]
[1] See Court Book at pages 27 to 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 22nd October 2010 to arrange a time for the interview.[2]
[2] Court Book 35
The Applicant did not telephone the Department to arrange an interview.
On 26th October 2010 the Applicant’s application for a Protection visa was refused. In the Protection (Class XA) Visa Decision Record dated 25 October 2010, the 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 an 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.[3]
[3] 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 2:00pm on 12th January 2011.[4]
[4] 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 dated 12th January 2011, 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.[5]
[5] 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.[6]
[6] Ibid 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 affidavit refers to the factual claims advanced by the Applicant in support of his refugee claim and makes no reference to any jurisdictional error on the part of the Tribunal.
The Applicant filed his Amended Application on 10th February 2011. It appears that a sealed copy of that Amended Application was not served on the Minister’s lawyers, as they were unaware of its existence until the morning of the hearing.
The Minister’s lawyers filed the First Respondent’s Outline of Submissions on 30th March 2011.
The Applicant attended Court on 1st April 2011. He was not legally represented. He made oral submissions with the assistance of an interpreter in the Punjabi language.
Submissions
The Applicant told the Court that there was still violence against Sikhs in India. He said that a friend of his had also lodged an application for a protection visa. His father was arrested in relation to a bomb blast in India. He had been tortured by the police. There were other cases similar to those.
The Applicant said that those incidents had happened only three or four weeks prior to the Court hearing.
The Applicant explained the two year delay in applying for a protection visa by saying that he had arrived in Australia on a student visa and applied for a protection visa once he had finished his studies.
The Applicant confirmed that he had not attended the interview with an officer of the Department of Immigration and Citizenship. He said that he had listened to advice from his relatives, who told him that it was not important to attend the interview.
The Applicant also confirmed that he had not attended the Refugee Review Tribunal hearing on 12th January, saying:
“I was busy that day”.
The Applicant told the Court that he would like to attend a hearing of the Tribunal to describe the atrocities by the Indian Government against the Sikhs.
Mr Smith for the Minister submitted that there was no jurisdictional; error. He referred to the decision of the Full Court of the Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[7] where the Court referred to the situation where an applicant had failed to appear before the Refugee Review Tribunal:
Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution…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.[8]
[7] [2004] FCAFC 287
[8] [2004] FCAFC 287 per French, Emmett and Dowsett JJ at [5]
It was submitted that the Tribunal had complied with the requirement under section 425 of the Migration Act to invite the Applicant to a hearing and the letter of invitation had complied with the requirements of section 425A of the Act. The letter had been sent to the Applicant within three working days of its date by prepaid post to the last address for service provided by the Applicant to the Tribunal. Therefore, the letter was sent by a means provided by subsection 441A(4) of the Act.
The letter gave the Applicant more than the prescribed period of fourteen days notice after receipt, thereby complying with the requirements of subsection 425A(3) and Regulation 4.35D of the Migration Regulations 1994.
It was also submitted that the letter sent to the Applicant complied with subsection 425A(4) of the Act by containing a statement as to the effect of s.426A. This latter section provides the Tribunal with a discretion as to whether to proceed with the hearing in the absence of the Applicant or not. The discretion is a wide discretion (see MZXTA v Minister for Immigration & Anor[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
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[11]).
[11] (2003) 211 CLR 476
The Applicant has not alleged any jurisdictional error in his Amended Application. All he has done is reiterate the factual merits of his refugee claim. Merits review is not available on judicial review.
There is nothing to show that the Tribunal committed any jurisdictional error. There is no failure to comply with s.425 or s.425A.
There is one anomaly, however. The Tribunal stated in 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.[12]
[12] Court Book at 73
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. The section that refers to the Refugee Review Tribunal is section 426A. However, 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 there is no jurisdictional error.
The fact is that the Applicant did not attend the hearing to which he was invited. It is clear that he was properly notified and he acknowledged that he was aware of it, but he chose not to attend. The Full Court of the Federal Court has referred to the consequences of non-attendance at a Tribunal hearing in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[13] and there are several decisions on appeal from this Court confirming that an applicant who chooses not to attend can hardly expect to be successful (see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[14] and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[15]).
[13] supra
[14] [2005] FCA 1306
[15] [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 is a wide discretion (see MZXTA v Minister for Immigration & Anor[16] at [71], and there is nothing to show that the Tribunal’s discretion miscarried.
[16] Supra
There is no jurisdictional error. The Tribunal decision is a privative clause decision, as defined by subsection 474(1) of the Act.
The Application will be dismissed.
Costs usually follow the event.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 6 May 2011
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