SZQKT v Minister for Immigration

[2011] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQKT v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 988

MIGRATION – Review of decision of the Refugee Review Tribunal – whether Tribunal failed to have regard to relevant documents – whether breach of s.425 – whether Tribunal was biased – application dismissed per r.13.03C(1)(e).

Migration Act 1958 (Cth), ss.36, 65, 425A, 425, 426A, 426, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

SZQQP v Minister for Immigration & Anor [2011] FMCA 803
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
SZGGG v Minister for Immigration & Anor [2006] FMCA 528
Bin Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559

Applicant: SZQKT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1458 of 2011

Judgment of: Nicholls FM

Hearing date: 21 October 2011

Date of Last Submission: 21 October 2011

Delivered at: Sydney

Delivered on: 21 October 2011

REPRESENTATION

The Applicant: No Appearance

Appearing for the Respondents: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 11 July 2011 is dismissed pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,260.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1458 of 2011

SZQKT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 11 July 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 June 2011 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. At the first Court date in this matter, on 10 August 2011, the applicant appeared in person. He was assisted on that day by an interpreter in the Indonesian language. The Minister was represented by a solicitor. Amongst other things, orders were made setting down the applicant’s matter for final hearing today, Friday, 21 October 2011, at 10.15am, before me here in this Court.

3. When the matter was called today there was no appearance by the applicant. After a short adjournment, the matter was called again. There was still no appearance by the applicant. I note it is now half an hour past the scheduled time for the commencement of the hearing.

4. Mr Jones, who appeared for the Minister, applied for dismissal of the application pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), which contemplates this Court proceeding to a hearing in the absence of the applicant.

5. It is my view that it is appropriate that the Court proceed in this fashion in this case. I am satisfied that the applicant had notice of the setting down of this matter today, and of the date, place and time. As to the place, it is the same place where the first Court date occurred. As to the time, the applicant, with the assistance of an interpreter, was told both orally and subsequently in writing, with orders given to him, of the time and date.

6. Nothing has been heard from the applicant despite opportunity provided to him at the first Court date. Nothing whatsoever has been filed in support of his application. The Court is left with the view that the applicant has done nothing to propel or prosecute his case before the Court.

7. It is, in that sense, a mirror of the applicant’s pattern of dealing with relevant institutions since coming to Australia and applying for a protection visa. The applicant made an application for a protection visa and was invited to an interview before the Minister’s delegate. Without explanation he did not attend. He then sought review by the Tribunal and was invited to a hearing. Again without explanation, he failed to attend. He then applied to this Court, and while he did attend at the first Court date, he has done nothing else to prosecute his case.

8. Nothing has been heard from the applicant. There has been no request for an adjournment. There is nothing before the Court to show that the applicant had any difficulty in attending Court today. Given the passage of time, I am of the view that the applicant does not intend to appear, but in any event, in one sense, that is irrelevant. The fact of the matter is the applicant has not attended, and given the history that I have just outlined, and the matters to which I have referred, it is appropriate that I proceed to a hearing of this matter pursuant to r.13.03C(1)(e) of the Rules.

9. In that light, having considered the matters, the applicant, for whatever reason, has chosen not to appear today to argue in his own cause. The Court is left with the material that has already been filed in this matter, and such as it has been admitted into evidence. That is, the Court Book (“CB”) and the written submissions by the Minister, adopted and relied upon by Mr Jones today. On the basis of that material it is appropriate that I dismiss the application. I will now proceed to give my formal reasons for doing so.

Background

1. I have a substantive application before the Court made on 11 July 2011. Relying on the Court Book for the relevant history, the applicant is a national of Indonesia, of Chinese ethnicity. He arrived in Australia on either 13 April 2008 (CB 13) or 22 May 2009 (CB 32). He applied for a protection visa on 13 January 2011 (CB 1 to CB 25).

Claims to Protection

1. The applicant’s claims to protection were that he had suffered discrimination because of his Chinese ethnicity and, in particular, that former classmates, whom he described as “local Indonesians”, came to his father’s shop and stole goods and slapped him when he complained (CB 17 to CB 20).

The Delegate

1. As I have already noted, the applicant was invited to attend an interview with the Minister’s delegate (CB 26). He did not attend (CB 37). No explanation was given. In those circumstances, the delegate found that the applicant’s claims were “vague and lacking in substantiating detail” (CB 38). That led the delegate to the position that he could not be satisfied that there was a well-founded fear of persecution for a Convention reason.

2. Nonetheless, the delegate then went on to observe (it is not clear whether it was observation or part of the reasoning, though in a sense it does not matter because the delegate’s decision is not the subject of the review by this Court) that adequate state protection would be available to the applicant. That, in any event, the applicant had returned to Indonesia from Australia before then coming back to Australia and, on coming to Australia on the second occasion, delayed his application for a protection visa (CB 38).

3. In all, as I said, the delegate was not satisfied that the applicant had a well-founded fear, or real chance ,of Convention-related persecution if he were to return to Indonesia (CB 38).

The Tribunal

1. The applicant then applied for review to the Tribunal on 28 March 2011 (CB 40 to CB 43). He provided an address to which correspondence in relation to the review was to be sent to him, and that gives the address as reproduced at CB 42.7, an address at Castlereagh Street in Sydney.

2. I have just read a judgment by a brother Federal Magistrate raising concerns about applicants who make applications and fail to attend interviews, hearings, and then fail to attend before the Court. I can only add my concern (see, for example, SZQQP v Minister for Immigration & Anor [2011] FMCA 803 per Driver FM at [15]), and just add that the address provided by the applicant, both in his application to the Tribunal and then in his application to the Court, is an address often seen in matters of this type before this Court.

3. I can only endorse the comments made by Driver FM calling upon the Minister to look at the situation of applicants who embark on this pattern of conduct and repeatedly fail to attend at critical events. I respectfully mute my comments in comparison to those put forward by my brother Federal Magistrate on the basis that I do acknowledge the difficulty that the Minister would face in dictating to people whether or not they could make applications. I leave it only, for my part, to note the expense to which the Australian taxpayer is put in these circumstances, and the diversion of the Court’s resources where applicants give no reason for their failure to attend at the hearing of their matter.

4. In any event, by letter dated 28 April 2011 the applicant was invited to a hearing before the Tribunal scheduled for 3 June 2011 (CB 45). The letter informed the applicant that, on the material before it, the Tribunal was unable to make a favourable decision and that the hearing was the applicant’s opportunity to give evidence and present arguments relating to the issues in his case. The applicant did not attend, nor was anything otherwise heard from the applicant ([28] at CB 52). In these circumstances, the Tribunal proceeded to make its decision, it said, pursuant to s.426A of the Act.

5. The Tribunal found the applicant’s non-attendance at the hearing left his claims, in these circumstances, remaining vague and unsubstantiated. That the applicant had not provided sufficient evidence to enable the Tribunal to identify and assess his claims. As a consequence the Tribunal said that it could not reach the requisite level of satisfaction (ss.65 and 36(2) of the Act) such that the protection visa must be granted (CB 52). It is the case that in these circumstances the Tribunal had no option but to affirm the delegate’s decision (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 and Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 at [187].

Application to the Court

1. The grounds of the application before the Court are in the following bare and unparticularised terms:

   “1. The Second Respondent made the decision without regard to relevant documents.

   2. The Second Respondent did not allow the applicant with a reasonable opportunity to be heard.

   3. The Second Respondent appeared to be biased.”

Consideration

1. Ground one of the application asserts that the Tribunal’s decision was made without regard to relevant documents. Unfortunately, the applicant does not say what these relevant documents were. His failure to attend today means that that question remains unanswered. It may be, at best, that this is an assertion of a failure to take into account a relevant consideration. In the absence of any detail whatsoever, it is difficult to see how the complaint can be elevated to some proper assertion of jurisdictional error.

2. As I said, the difficulty now is that, without anything further from the applicant, on what is before the Court the only documents that were relevant to this Tribunal’s decision were the application for the protection visa and the application for review. The applicant put nothing further to the Tribunal such that it could be said it failed to have regard to any relevant documents. The Tribunal plainly did have regard to the documents that were before it, as bare as these documents were.

3. Even if this was seen to be some failure to take into account a relevant consideration, without anything further, the ground as particularised with reference to documents cannot be made out. As to any other relevant consideration, on any plain reading of its decision record, the Tribunal took into account the applicant’s claims (as bare as they were), and properly applied the law that it set out in its decision record in unexceptionable terms. No error is apparent in that regard. In the absence of any other documents which can be said to be relevant, this ground, if I can call it that, cannot be made out.

4. Ground two may be some assertion, as is submitted by the Minister, of some failure of the Tribunal to discharge its obligation pursuant to s.425 of the Act. Again, no particulars are provided by the applicant. In any event, as the Minister sets out, the applicant was given such an opportunity to be heard. He was invited, pursuant to s.425, to attend a hearing for the express purpose of being heard as to the issues in relation to the review. The Tribunal’s letter, in the absence of anything else, must be taken at face value and, clearly, that is what it said.

5. The evidence before the Court reveals that the invitation to the hearing met all the relevant statutory and regulatory requirements (s.425A, s.441A(4) and s.441C(4). There was also a statement to the effect of s.426A and reg.4.35D(b) of the Migration Regulations 1994 (Cth) – in addition to the Court Book, see also the affidavit of Ms J Ingram sworn on 4 October 2011). In all, once the Tribunal discharged its statutory and regulatory obligations in relation to the invitation to hearing (which is the opportunity to be heard given to the applicant), whether the applicant actually got that invitation or not does not assist the applicant (see SZGGG v Minister for Immigration & Anor [2006] FMCA 528 at [36] and the reliance there on Bin Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172).

6. The critical issue is that the Tribunal fulfilled its obligation by the proper sending of the invitation. As to that, I note there is nothing in the relevant material (the Court Book) to show that any of the communications with the applicant were returned as “undeliverable” or “unclaimed”.

7. So in all, therefore, ground two is not made out.

8. Ground three raises an allegation of bias. It is the case that such a serious allegation, and I must note again that it is perhaps understandable for unrepresented applicants without the benefit of legal advice (although I note in this case the applicant was referred to a lawyer on the panel of the RRT Legal Advice Scheme – the certificate returned by that lawyer, which is on the Court file, notes that the applicant was given legal advice both orally and in writing on 23 August 2011) that allegations of bias can be easily made by them. But it is the case that it is a serious allegation to make because, unlike other assertions of legal error in the review of administrative decisions, such an allegation goes to the very integrity of the relevant decision-maker.

9. For that reason in particular, such allegations need to be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

10. The short of it is that, in this case, the applicant has done neither of those two things. It must be said that, on the material that is before the Court, no bias, or for that matter any apprehension of bias, can be said to arise, let alone is capable of being made out.

11. I should just note in that context that the Tribunal’s advice in its letter of invitation to hearing that it could not make a favourable decision on what was before it does not, in the circumstances of this case, reveal any pre-judgment by the Tribunal. The Tribunal’s advice at that point reflected the process set out in s.425 of the Act. That is, that the Tribunal must invite the applicant to a hearing to give evidence and present arguments in relation to the review unless either of the circumstances set out in s.425(2) apply.

12. In the current case, the Tribunal was merely stating that it could not make a decision, as is colloquially referred to, “on the papers”. That is, on what had been put before it. There is no bias that can be said to arise from following the statutory process that has been put in place. Nor can it be said that there was any apprehension of bias. Nor can I otherwise see that there was anything else in what the Tribunal did in relation to its notification to the applicant of its initial view of what had been put before it. So therefore, on all bases, no legal error is revealed in that regard.

13. It is clear that the catalyst for the Tribunal’s conclusion was the applicant’s unexplained failure to attend the hearing to which he had been invited. That was the applicant’s opportunity to come forward, an opportunity which he chose not to take up before the delegate, and so would have been on notice as a result of the delegate’s decision of the critical consequences of not attending to support what had already been found to be an unsatisfactory expression of his claims to fear persecutory harm.

14. To then act in the same way before the Tribunal, having had the experience before the delegate, is a circumstance, as has been described by a Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, that leads to the inevitable conclusion reached by the Tribunal. The applicant could not have expected anything different.

15. As the Minister submits, it is the case that the Tribunal does not have to uncritically accept the applicant’s bare claims at face value (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 596). It is the case that an applicant, including this applicant, bears some responsibility to provide assertions in sufficient detail such that the decision-maker can establish the relevant facts.

16. It is the case that, in the relevant United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status” (Geneva 1992) (the guidelines on the Refugees Convention), there is some caution expressed about onus of proof and who may bear the burden of proof (see [203] – [204]). Australian Courts have considered that question. But this case does not present such a circumstance, and my comments go nowhere near to bringing this case into one of the ones where the question of the onus of proof or who bears the burden comes out.

17. It is clear that an applicant claiming to fear persecutory harm must at least provide some detail, to some level of sufficiency, such that the relevant decision-maker, in this case the Tribunal, can proceed to make some meaningful consideration. The meaningful consideration open to the Tribunal here was derived from the paucity of the claims that the applicant chose to put despite opportunity provided to him to enhance those claims. I am reminded by the Minister’s submissions of what the High Court said in Guo: that the Tribunal is not required to make out the applicant’s case for him. It is difficult to see what more the Tribunal could have done in this case in any event, given the nature and manner of the claims that were put to it.

18. In any event, no jurisdictional error arises from what the applicant has put before the Court.

Conclusions

1. I have looked at all the material that has been put before the Court. I cannot otherwise see that the Tribunal fell into any other legal error, let alone jurisdictional error. For that reason it is appropriate that the application be dismissed. I will make an order accordingly.

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

Date: 16 December 2011