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Federal Court of Australia |
Last Updated: 9 February 2004
FEDERAL COURT OF AUSTRALIA
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs
SJSB
v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
S 452 of 2003
MANSFIELD
J
22 JANUARY 2004
ADELAIDE
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SJSB
APPLICANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The application to quash the decision of the Refugee Review Tribunal made on 6 March 2003 be dismissed.
2. The applicant pay to the respondent costs of the
application.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
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S 452 OF 2003
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REASONS FOR JUDGMENT
1 This is an application under s 39B of the Judiciary Act to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 6 March 2003. The Tribunal affirmed a decision of a delegate of the respondent of 22 January 2002 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 6 November 2001.
2 Although the application was instituted by solicitors acting on behalf of the applicant, those solicitors have not been instructed to make submissions on behalf of the applicant at the hearing today. He has not otherwise attended. In those circumstances, I propose to deal with the matter on the merits in the absence of the applicant. It is apparent from the affidavit of the solicitor for the applicant filed on 15 January 2004 that he has been made aware of today's hearing and had some communications with his solicitors prior to today's hearing concerning it.
3 The applicant is a national of Sri Lanka who arrived in Australia on 3 March 2001 on a student visa. As noted, he subsequently applied for a protection visa under the Act. To qualify for a protection visa he had to satisfy the decision-maker that he is a person to whom Australia owes protection obligations under the Refugees Convention, as amended by the Refugees Protocol (the Convention): see s 36(2) of the Act. In practical terms that means that the decision-maker had to be satisfied that he is a refugee as defined in Art 1A(2) of the Convention.
4 His claim to be a refugee is set out in the protection visa application. It is in the following terms:
‘I am a Sinhalese Buddhist National of Sri Lanka. My father has been a native doctor for the last 30 years. He was attached to a hospital in Puttalam and also treated private patients. Among his patients he had Singhalese and Tamils. In Puttalam area, in the eastern suburbs of Sri Lanka, he treated Tamils and later he was suspected of assisting the LTTE. He was arrested in Colombo, together with me. I will send a detailed statement of claim within three weeks’ time.’
5 He proceeded to claim that he would be arrested and tortured by the police if he returns to Sri Lanka because he has been suspected of supporting the LTTE. Despite the intimation of a detailed statement of his claims being forthcoming, he made no further claims to the respondent in support of his application. Before the delegate's decision, the Department of the respondent wrote to him on 28 November 2001 indicating that he should promptly submit any such further material. He did not respond.
6 On the basis, therefore, of that limited information the delegate of the respondent rejected his claim. The Tribunal was required to address his claims anew. It did so. It indicated to him that it was unable to make a decision in his favour on the papers. He nevertheless made no further detailed submissions to the Tribunal. He submitted no further information to it. On 30 January 2003 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation was made in accordance with s 425(1) of the Act. The applicant did not respond.
7 Section 426A of the Act provides that, in those circumstances and because the applicant did not appear before the Tribunal on the day on which, or at the time and place at which he was scheduled to appear, the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It proceeded to do so. It said:
‘The Applicant’s claims as set out in the protection visa application are couched at such a general and vague level that the Tribunal cannot establish the relevant facts.
The Applicant claims that he and his father were arrested because his father who is a doctor had treated Tamils. The Applicant provides no time frame as to when these claimed arrests took place, nor any detail as to the outcome of these claimed arrests. The Applicant merely claims that he will be re-arrested and tortured on returning to Sri Lanka. However the Tribunal notes that according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.
Without further detail from the Applicant the Tribunal is unable to be satisfied that because his father treated Tamil patients the Applicant was arrested on suspicion of supporting the LTTE and that the Applicant faces arrest on his return to Sri Lanka.
Accordingly, the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution or faces a real chance of persecution for a Convention reason on his return to Sri Lanka.’
8 The present application is made on the basis that the decision of the Tribunal was infected by jurisdictional error. It is necessary for jurisdictional error to be demonstrated to enable the Court to set aside the Tribunal's decision: see Plaintiff S 157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2, (2003) 211 CLR 317.
9 The grounds upon which the applicant asserts jurisdictional error are those specified in his application. They are formulaic and in part misconceived. They are misconceived because the orders sought include orders directing the respondent to remove the Tribunal's decision to this Court to be quashed, when it is not within the respondent's power or function to do so, and because they seek an order directing the respondent to appoint a member of the Tribunal to rehear and determine the application for the visa, when the respondent has no power or function to control the constitution of the Tribunal.
10 Apart from the application, O 4 r 6 of the Federal Court Rules requires the application to be accompanied by an affidavit which sets out the material facts upon which the application is made. The affidavit filed at the same time as the application is of no assistance; it simply annexes a copy of the Tribunal's decision. As noted, the grounds of application set out in the application itself are formulaic and contain no particularity at all.
11 It is, however, necessary for the court to address them. Grounds 1 and 2 assert that the Tribunal failed to accord procedural fairness to the applicant in connection with the making of the decision. In the absence of particularity, it is difficult to know what the applicant seeks to assert to. There is nothing in the material before me to indicate that the Tribunal failed to accord procedural fairness to the applicant. It complied with the obligation to give him the opportunity to be heard by inviting him to attend a hearing and to give evidence and to make submissions. He simply did not take up that opportunity. The reason why he did not do so is unexplained. There is nothing in the Tribunal's reasons or in the material before me which indicates in any way that the Tribunal failed to accord him procedural fairness in connection with the making of its decision.
12 Grounds 3 and 7 assert errors of law on the part of the Tribunal. Again, I see no foundation for that claim. The Tribunal has correctly identified that the issue before it was whether the criterion specified in s 36(2) of the Act was satisfied. It has correctly identified that its satisfaction depended upon whether the applicant satisfied it that he was a refugee as defined in Art 1A(2) of the Convention. It has correctly referred to decisions of the High Court about the meaning of Art 1A(2) and in particular the meaning of the expression ‘having a well-founded fear of persecution for a Convention reason’. I see no basis upon which error of law on the part of the Tribunal is made out.
13 Grounds 4, 5 and 6 are discrete but, in my view, not demonstrated by reference to the Tribunal's reasons or the material before me indicating how the Tribunal came to reach its conclusions. They are that the procedures that were required by law to be observed in connection with the making of the decision were not observed; that the making of the decision was an improper exercise of the power conferred by the Act; and that there was no evidence or other material to justify the making of the decision. I simply see no basis upon which any of those assertions can be made out. If there were particular matters which the applicant wished to refer to the Court, he has not identified them in his application in any way.
14 In my judgment the applicant has failed to demonstrate jurisdictional error on the part of the Tribunal. The application must be dismissed. I order that the applicant pay to the respondent costs of the application.
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I certify that the preceding fourteen (14) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Mansfield.
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Associate:
Dated: 29 January 2004
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Counsel for the Applicant:
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The Applicant did not appear
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Solicitor for the Applicant:
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M W Clisby
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Counsel for the Respondent:
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Mr J van Lingen
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Solicitor for the Respondent:
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Sparke Helmore
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Date of Hearing:
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22 January 2004
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Date of Judgment:
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22 January 2004
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