VUAL v Minister for Immigration
[2004] FMCA 1111
•2 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VUAL v MINISTER FOR IMMIGRATION | [2004] FMCA 1111 |
| MIGRATION – Review of decision of Refugee Review Tribunal – protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Plaintiff S157/2002 v the Commonwealth of Australia (2003) HCA 2
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2002) HCA 1
Kioa v West (1985) 159 CLR 550 at 587
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
| Applicant: | APPLICANT VUAL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1477 of 2003 |
| Delivered on: | 2 September 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 September 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondent: | Ms S.E. Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $5767.
Certify for Counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1477 of 2003
| APPLICANT VUAL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Lebanon who was born on 1 September 1974. He arrived in Australia on 7 April 2001 on a visitor visa. On 17 May 2001 he applied for a protection visa. The application was refused by a delegate of the Minister on 5 March 2002. On 14 March 2002 the applicant sought review of that decision by the Refugee Review Tribunal.
By letter dated 3 September 2003 the tribunal advised the applicant that it was unable to make a decision favourable to him on the material before it and invited the applicant to attend the hearing on 27 October 2003. That letter noted that if the applicant did not attend the hearing the tribunal could proceed to make a decision on the case without further notice to the applicant. The applicant advised the tribunal that he did not want to attend the hearing and consented to the tribunal making its decision without any further opportunity to him to appear before it.
In those circumstances the tribunal proceeded pursuant to section 426A of the Migration Act 1958 (Cth) (the Act) to make its decision. The tribunal affirmed the decision under review by a decision made on
18 September 2003. The applicant filed an application in the Federal Court on 24 October 2003 seeking review of the tribunal's decision. An amended application was filed on 15 December 2003. The proceedings were transferred to this Court by order dated 17 December 2003.
The claims of the applicant are succinctly and accurately set out in the respondent's contentions of fact and law filed 11 March 2004 and adopted herein. I note that the applicant when arriving in Australia had travelled on a legally issued Lebanese passport that had been issued on 21 December 1996.
The Tribunal's decision
The tribunal noted that the applicant had been advised that it was unable to make a decision favourable to the applicant on the material before it and had invited him to attend a hearing. The applicant however, had declined that invitation. The tribunal noted that it was not obliged to accept uncritically the claims made to it and it was for the applicant to satisfy the tribunal that the statutory elements were made out. The tribunal noted that the delegate's decision put the applicant on notice about matters relevant to his claim but that the applicant chose not to avail himself of the opportunity to provide further information to the tribunal.
The tribunal considered there was insufficient information before it to reach conclusions about what had happened to the applicant in Lebanon. The tribunal said that if the applicant had appeared before it, it would have explored the nature and role of the alleged militia and tested the truthfulness of the applicant's claim. In the absence of evidence that might have been forthcoming at a hearing, the tribunal was unable to be satisfied that the applicant's fear of harm was well‑founded. The tribunal concluded on the evidence before it that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.
This application is affected by the privative clause contained in section 474 of the Act. The High Court held in Plaintiff S157/2002 v the Commonwealth of Australia (2003) HCA 2 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2002) HCA 1 that the privative clause does not protect tribunal decisions that are affected by jurisdictional error.
In respect of the proceedings before me, the matters set out in the applicant's contentions differ somewhat from the matters set out by the applicant in his amended application. No further amended application setting out the grounds on which he actually relies has been filed by the applicant. The applicant said in paragraph 2 of his contentions that the respondent, presumably meaning the tribunal, failed to exercise its jurisdiction or exceeded its jurisdiction by failing to make findings of fact concerning the claims made by the applicant. However, the tribunal had clearly told the applicant in letter of 3 September 2003 that the information before it, which was the Departmental file and the tribunal file, was insufficient to enable the tribunal to come to a decision in the applicant's favour. Notwithstanding that, the applicant advised the tribunal he did not wish to attend the hearing.
It is a matter for the applicant to satisfy the tribunal of the truthfulness of his claims. As Mason J said in Kioa v West (1985) 159 CLR 550 at 587:
The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.
The tribunal is under no obligation to accept the applicant's claims uncritically (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596).
By section 430 of the Act the tribunal is required to set out its findings on any material questions of fact. This provision was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. The High Court said at 17(68) that section 430 only required the tribunal to set out the findings that it did make, not the findings that another person might think the tribunal should have made.
In this case the tribunal clearly set out its findings on material questions of fact. It said:
There is insufficient information in the evidence which is before me to enable me to reach conclusions about what happened to the applicant in Lebanon ... In the absence of such additional information as might have been obtained at hearing, there is ... no basis on which I conclude that the applicant's fear of coming to harm at the hands of the Lebanese authorities is well-founded.
Accordingly, I find the tribunal did not err by failing to set out its findings.
The applicant said in paragraph 3 of his contentions that the respondent, again presumably meaning the tribunal, failed to exercise its jurisdiction when finding that there was insufficient information before it when that information had been made available to the delegate and ought to have been considered by the tribunal. I find the tribunal very clearly did consider the information that was before the delegate. It said it could not make a decision favourable to the applicant on the basis of that information as set out in the referred to letter of 3 September 2003. It set out a fair statement of the applicant's claims in its reasons for decision.
The applicant says in paragraph 4 of his contentions the tribunal misapplied the real chance of persecution test by merely stating that discriminatory policies of governments are not necessarily persecutory. The tribunal stated no such thing. That contention is likewise without foundation. I find that there is no jurisdictional error committed by the tribunal and that this application must be dismissed. I note that I have been assisted in the delivery of these reasons ex tempore by the respondent's contentions of fact and law which accurately set out the matters which the court had before it and the matters which the court should consider.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Tracey Jones
Date: 2 September 2004
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