SZOZP v Minister for Immigration
[2011] FMCA 324
•1 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 324 |
| MIGRATION – Visa – protection visa – review of Refugee Review Tribunal decision – where applicant did not attend the Tribunal hearing – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 362B, 424A, 425, 425A, 426A, 441A, 474, 476, 486A 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 1202 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: | SZOZP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 230 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 $2,380.00.
I allow four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 230 of 2011
| SZOZP |
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)A declaration that the recommendation of the Independent Protection assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application;
(4)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; and
(5)The application for judicial interference may kindly be accepted.
As can be seen, several of the orders sought by the Applicant 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 the decision 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, extending to just over four pages, all relating entirely to the factual merits of the Applicant’s refugee claim. The applicant states that he is a Sikh by ethnicity and belongs to the State of Punjab, in India. He claims to be a member of the All India Sikh Student Federation and to have suffered persecution at the hands of the Indian authorities because of his political opinion.
The Minister has filed a Response opposing the orders sought by the Applicant 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 8th December 2007. He applied for a Protection (Class XA) visa over two years later, on 5th July 2010.
His application for a protection visa was based on the Convention ground of his political opinion, as he made clear in a two page typed statement he provided with his application. The Applicant claimed that:
I was very much interested in the social and political welfare of the Sikhs communities specially in my own area as such I joined the Sikh Student Federation, which is a branch of the All India Student Sikh Federation…
After passing my Higher Secondary School, I became an activist of my own party, I used to call public meetings, in which all the peoples from different thoughts used to attend the meetings…
I was detained. I was interrogated that I have links with the terrorists. I had to undergo a lot of tortures. I was bashed and was tortured to the extreme degree of investigation, I was left at the mercy of the investigation agencies as to which group of terrorists I belong. After about three weeks I was let free on the conditions that I will not take part in the politics or any other activities for the Sikh community.
I had no alternative to survive in India. I decided to flee from the country. I arrived in Australia on a student visa and came to Australia. I have a real chance of being killed by the hands of the authorities in India, based on our political opinions. We have an subjective and objective fear of life in India.[1]
[1] See Court book at pages 27 and 28.
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 25th October 2010 to arrange a time for the interview.
The Applicant did not telephone the Department to arrange an interview.
On 27th October 2010 the Applicant’s application for a Protection visa was refused. In the Protection (Class XA) Visa Decision Record dated 25th 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 too advise that there was a reason why he was unable to attend an interview.
All reasonable steps have been taken to give the applicant an opportunity to substantiate his claims however he has failed to take up that opportunity.
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.[2]
[2] Court Book at 43-44
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. The Tribunal invited the Applicant to attend a hearing to give evidence and present arguments relating to the issues in his case at 9:00am on 12th January 2011.
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.[3]
[3] Court Book 69 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 ahs 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.[4]
[4] 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 15th February 2011. In his affidavit, the Applicant alleges jurisdictional error on the part of the Tribunal and sets out his difficulties in representing himself. Those parts of the affidavit are set out below:
Section 486A was misread, likewise many other jurisdictional errors were committed, many other laws of the migration act were violated.
That the requirements as laid down in the section 424A of the Migration Act were not complied with.
That the respondents did not follow the proper procedure while disposing of the applicant’s matters…
That the applicant had got no chance of appearing before the RRT, the applicant is a person who has been unrepresented throughout. To engage a lawyer was beyond the capacity of the applicant.[5]
[5] Affidavit of SZOZP 26.1.2011 at paragraph [1]
The balance of the affidavit refers to the factual claims advanced by the Applicant in support of his refugee claim.
The Minister’s lawyers filed a Response on 18th February 2011.
The Applicant filed an Amended Application on 23rd March 2011.
The Minister’s Lawyers filed the First Respondent’s Outline of Submissions on 30th March 2011.
The Applicant did not file a written outline of submissions but he attended Court and made an oral submission in support of his case. He was not represented but had the assistance of an interpreter in the Punjabi language.
Submissions
The Applicant confirmed that he did not seek to attend an interview with the officer from the Department of Immigration and Citizenship. He said that it was mentioned in the letter that the interview was “optional”.
The Applicant also confirmed to the Court that he did not attend the Tribunal hearing. He said that he decided not to attend the hearing. His explanation was that he decided that it was “not important” to attend the Tribunal hearing.
The Applicant was asked by the Bench to explain why he believed that the Tribunal had made an error of law. He said that he did not know but suggested that the Tribunal may not have looked at his case properly. He said that he put everything truthfully in his application for a visa.
Mr Smith, who appeared for the Minister, submitted that there was no jurisdictional error on the part of the Tribunal. The Tribunal could not make a decision favourable to the Applicant on the material before it, so it invited the Applicant to attend a hearing. When the Applicant did not attend, the Tribunal was still unable to make a decision in his favour.
Mr Smith referred the Court to the decision of the Full Court of the Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[6], where French, Emmett and Dowsett JJ dealt with a case 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.[7]
[6] [2004] FCAFC 287
[7] [2004] FCAFC 287 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 to adjourn it to another occasion. The discretion is a wide discretion (see MZXTA v Minister for Immigration & Anor[8] at [71], affirmed on appeal in MZXTA v Minister for Immigration and Citizenship[9]).
[8] [2008] FMCA 1201
[9] [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:
a)is final and conclusive; and
b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (see s.474(1)).
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[10]).
[10] (2003) 211 CLR 476
The Applicant has alleged jurisdictional error in his affidavit of 26th January 2011, but not in his Amended Application. His Amended Application only deals with the factual merits of his claim. Merits review is not permissible on judicial review.
The Applicant particularises three claims of jurisdictional error in his affidavit:
a)That the Tribunal misread s.486A of the Migration Act;
b)That the Tribunal did not comply with requirements of s.424A of the Act; and
c)That the Tribunal did not follow the proper procedure when dealing with the applicant’s application.
The reference to section 486A of the Act is misconceived. That section deals with the time limit on applications to the High Court for judicial review. It is irrelevant to the Tribunal’s deliberations on the Applicant’s application for review of the Delegate’s decision not to grant him a Protection visa.
Second, the reference to section 424A of the Act is also irrelevant. That section requires the Tribunal to give to the Applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.
There was no such information. The Tribunal had insufficient information to make a decision in the Applicant’s favour.
The third point made in the Applicant’s affidavit is that the Tribunal did not follow proper procedure. There is no failure to comply with sections 425 or 425A.
The Tribunal invited the Applicant to attend a hearing and he elected not to attend. The Tribunal exercised the discretion given to it by the Act to make its decision on the review without taking any further action to allow or enable the application before it. The discretion is a wide one (see MZXTA v Minister for Immigration & Anor[11]) and there is nothing to show that the discretion miscarried.
[11] supra
There is one anomaly, however, in that the Tribunal referred to the wrong section. 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 69
Section 362B is to be found in Part 5, Division 5 of the Migration Act and applies to the Migration Review Tribunal. The section that gives power to the Refugee Review Tribunal to make a decision in the absence of the applicant 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 in citing the wrong section, it is a technical error and not a jurisdictional error.
The Applicant did not attend the hearing to which he was invited. He was properly notified that that the information before the Tribunal was insufficient to enable the Tribunal to make a decision and invited to attend to give further evidence. He did not 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 also several decisions on appeal from the Federal Magistrates Court confirming that an applicant who chooses not to attend a Tribunal hearing 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
There is no jurisdictional error. The Tribunal decision is a privative clause decision, as defined by subsection 474(1) of the Act.
Consequently, the application will be dismissed.
The Minister is seeking an order for costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 6 May 2011
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