SZNRL v Minister for Immigration & Anor (No.2) [2009] FMCA 1239 (3 December 2009)

Last Updated: 15 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRL v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2009] FMCA 1239

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1)(b); 426A; 474; pt8 div 2

Applicant:

SZNRL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1440 of 2009

Judgment of:

Emmett FM

Hearing date:

3 December 2009

Date of Last Submission:

3 December 2009

Delivered at:

Sydney

Delivered on:

3 December 2009

REPRESENTATION

Applicant appeared on her own behalf

Solicitors for the Respondent:

Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1440 of 2009

SZNRL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and part 8 division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 May 2009 and handed down on 22 May 2009.
2. The applicant claims to be a citizen of Fiji and claims to fear persecution from persons in Fiji in circumstances where she alleges that the police will not protect her. The applicant arrived in Australia on 22 September 2008, having departed legally from Nadi airport in Fiji on a passport issued in her own name and a subclass 676 visa issued on 4 September 2008.
3. On the 4 November 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (“the Department”). The applicant provided a statement in support of that application in which she claimed that she and her mother and brother were physically abused by her father following her parent’s separation in 2002.
4. On the 18 December 2008, the Department wrote to the applicant and invited her to come to an interview with a delegate of the first respondent on 22 December 2008. The letter also invited the applicant to send any further information or documents that she wished the delegate to consider.
5. The applicant provided a further statement, dated 22 December 2008, in support of her claims to the Department. In that statement, the applicant claimed that she had been robbed twice and physically assaulted while trying to escape her home from persons unknown. The applicant claimed that she was, at times, quite close to being sexually assaulted and was forced to move from her house to other places. The applicant further claimed that she was sexually and physically abused by her step-brothers in addition to the abuse she suffered from her father. The applicant stated that, as a result of these events, she had suffered “common health problems such as stress, anxiety, major tragedies”.
6. On 22 December 2008, the applicant attended an interview with a delegate. On 17 January 2009, the delegate refused the applicant’s application for a protection visa.
7. In its decision record the delegate found that there was no convention nexus for any of the matters which the applicant claimed to have suffered. The delegate stated that, even if the delegate was to accept her claims that she had been the victim of crimes of domestic violence and sexual abuse, her claims do not amount to Convention based persecution. The delegate refused the applicant a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations.
8. On 21 January 2009, the applicant completed an application for review, which appears to have been faxed to the Tribunal on 13 February 2009.
9. On 16 February 2009, the Tribunal acknowledged receipt of the applicant’s application for review and invited the applicant to provide any further material or written submissions that she wished the Tribunal to consider.
10. On 3 March 2009, the Tribunal again wrote to the applicant inviting her to come to a hearing before the Tribunal on 23 April 2009. The letter commenced with informing the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter invited the applicant to send any further information or arguments that she wished the Tribunal to consider and informed the applicant that if she failed to attend the scheduled hearing that the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.
11. The applicant responded to that invitation in a letter dated, 17 March 2009, in which she indicated that she did wish to attend the hearing and requested that the Tribunal take evidence from her aunt and uncle at that hearing.
12. The applicant also provided a further statement to the Tribunal in support of her review application in which she claimed that her house had been targeted as a meeting place for surrounding natives without the consent of her family. The statement also said that, as a result of the coup, she and her family suffered problems because of her Indian ethnicity. The statement also referred to complaints made by the applicant of alleged assaults.
13. On 14 April 2009, the applicant and her uncle called the Tribunal to enquire whether a fee was payable, should they withdraw the application at that point in time. The case note identified in the bundle of relevant documents, marked Exhibit 1R, states that the applicant was advised that no fee would be payable should the applicant withdraw her application at that stage and noted that the applicant confirmed that she would fax through a withdrawal letter later that day.
14. On 22 April 2009, the applicant faxed through a statutory declaration to the Tribunal stating that she would like to withdraw her case as per her conversation with the Tribunal officer on 14 April 2009.
15. On 22 April 2009, the Tribunal responded to the applicant confirming that the Tribunal had received her letter requesting withdrawal. The letter informed her that, upon receipt of that letter, the Tribunal was considering whether her application for review had been validly withdrawn.
16. On 24 April 2009, the Tribunal telephoned the applicant about her withdrawal application. The file note of that telephone conversation states that the applicant instructed her uncle to speak to the Tribunal officer on her behalf. The file note records that the applicant’s uncle confirmed that the applicant wished to withdraw her application, as she wished to lodge a spouse visa application with the Department. However, the applicant’s uncle asked that the Tribunal postpone its decision for two weeks, as the applicant did not yet have her spouse visa application ready. The file note records that the applicant’s uncle was told that the message would be passed on to the Tribunal Member and that something would be put in writing and posted to the applicant on the following Monday.
17. On 2 May 2009, the applicant wrote to the Tribunal informing the Tribunal that her request to withdraw her application was “merely an accident and/or poor knowledge of the subject.” The letter stated that the applicant was seeking some documentation from Fiji. The letter stated that the applicant had sought to withdraw her application because she may not be able to obtain those documents in time for the hearing. The letter went on to say that the applicant had now taken advice from a qualified migration agent, who had advised her of the appropriate steps. The letter confirms that the applicant wished to advise the Tribunal that her application was now not withdrawn. The applicant completed the appointment of an authorised agent on 2 May 2009, providing the contact details of her representative and stating that he was to be her authorised recipient.
18. On 4 May 2009, the Tribunal wrote to the applicant’s migration agent enclosing an invitation addressed to the applicant to come to a hearing before the Tribunal to give evidence and present arguments on 20 May 2009.
19. Again, the letter to the applicant stated that the Tribunal had considered the material before it but it was unable to make a favourable decision on that information alone. The letter gave the date, time and place at which the hearing would be held and informed the applicant that the Tribunal would only change that hearing date for good reason.
20. The letter stated that the applicant should contact the Tribunal immediately if she was unable to attend the hearing. The letter stated that, if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to enable her to appear before it. The letter attached another Response to Hearing Invitation Form. The letter also invited the applicant to send any further additional information or requests or any new information which she wished the Tribunal to consider.
21. The response to hearing invitation form was not returned to the Tribunal, nor were there any other documents or communications received from the applicant or on her behalf.
22. On 21 May 2009, the Tribunal proceeded to make its decision affirming the decision under review. In its decision record, the Tribunal recited the history of communications that it had with the applicant and to which I have referred above. The Tribunal noted that there had been no reply received to the Tribunal’s most recent letter inviting the applicant to come to a hearing and that the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend.
23. In the circumstances, the Tribunal purported to exercise the discretion that it has under s.426A of the Act to decide to make its decision on the review without taking any further action to enable the applicant to appear before it.
24. The Tribunal then summarised the written claims made by the applicant and noted that it reviewed the audio recording of the applicant’s interview with the delegate. The Tribunal summarised the additional claims made by the applicant at that interview.
25. The Tribunal also had regard to a further document, dated 18 March 2009, which again added to the applicant’s claims. The Tribunal summarised those further claims made by the applicant.
26. The Tribunal noted the relevant law against which it must assess the applicant’s claims and found that there was insufficient information before it to enable it to be satisfied that the applicant would face a real chance of serious harm if she were to return to Fiji.
27. The Tribunal found the applicant’s claims concerning her experiences in Fiji to be generally vague and lacking in circumstantial detail and unsubstantiated from any external source. The Tribunal noted that the applicant offered no information about basic issues such as when or where the alleged incidents of harm occurred, who her assailants may be, how many of them were involved and how it was that she was able to escape more serious harm.
28. The Tribunal found the applicant’s claims about the alleged assaults from her father and other family members to be similarly devoid of circumstantial detail. The Tribunal noted that the applicant did not give “even the most basic details about the harm she suffered.” The Tribunal noted that the applicant did not make clear whether or not she complained to the police about this harm and, if she did, what was their response.
29. Ultimately, the Tribunal was not satisfied that the applicant had ever been subjected to serious harm from any person in Fiji for any Convention related reason.
30. The Tribunal did accept that the applicant could experience difficulty in finding employment, if she were to return to Fiji. However, the Tribunal was not satisfied that this would represent more than the economic difficulties faced by the rest of Fiji’s population in the wake of the military coup of December 2006. The Tribunal was not satisfied that her problems in that area involved any discriminatory harm.
31. The Tribunal noted that the applicant did not claim to fear harm in Fiji for any other reason and that no other reason was apparent on the face of the information before the Tribunal.
32. In the circumstances, the Tribunal was not satisfied that there is a real chance that the applicant would face serious harm amounting to persecution in Fiji. The Tribunal was not satisfied that the applicant has a well-founded fear of harm for a Convention reason, if she were to return to Fiji now or in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the decision under review.
33. On 17 June 2009, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
34. On 4 August 2009, the applicant attended a directions hearing before me on which occasion she was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 1 September 2009, together with any evidence by way of affidavit in support of her application, including any transcript of the Tribunal hearing. The applicant was also directed to file and serve written submissions in support of her application 14 days before the hearing. The applicant’s evidence was to be filed by 1 September 2009.
35. The applicant was referred to the Court’s Legal Advice Scheme and met with a panel advisor on 31 August 2009 and was provided with written advice on 1 September 2009. The applicant was also provided at the directions hearing with the contact details of legal services providers together with the details of translating and interpreting services.
36. On 1 September 2009, the applicant filed an amended application and an affidavit annexing three documents. The applicant also filed, on 30 November 2009, a further affidavit annexing one document that had been annexed to her previous affidavit and a further document being a psychological report dated 8 September 2009.
37. The applicant was unrepresented before this Court. At the commencement of the hearing, the applicant confirmed that she relied upon the grounds contained in the amended application filed on 1 September 2009:
    • “1. Determination of compelling reasons raises a mixed questions of fact and law and there is no statutory definition of the expression “compelling reasons” used in the Act.
    • 2. There are no psychological factors taken in accordance with the law and the sexual assault and this has been one of the most dreadful situations that I had been through and all this because of instability and racism in the country on the other hand.
    • 3. Where the source of evidence has been the medical certificate from the doctor which was obtained pursuant to the complaint lodged to the Fiji police and the report is attached herewith.
    • 4. The purpose of coming to Australia was to seek protection to avoid further aggravation and shame on humanitarian grounds.
    • 5. The department of Immigration gave me an interview to this effect where I could relay all my information to a lady officer.
    • 6. Out of shame I did not relay this information of me being raped to my uncle and therefore all submissions I made earlier to Department and Tribunal was my stress factor and psychological reasons and therefore the decision was infected with jurisdictional error and procedural error and this was detrimental to the Applicant getting a fair hearing at the Refugee Review Tribunal.
    • 7. The Tribunal was approached to give more time to submit documentations relating to psychological and police report but the Tribunal set up a hearing date so speedily that I got frustrated to add to my current psychological report.
    • 8. Therefore, these tests of apprehended bias had been established.
    • 9. The Tribunal erred in not providing the Applicant the opportunity on the information relevant to police report and doctors report pursuant to section 424A of the Migration Act.
    • 10. The Applicant submits that there is a breach of sec.353 as the Tribunal shall act according to the substantial justice and the merits of the case.
    • 11. The Applicant submits that the Tribunals decision illogical or manifestly unreasonable and affected by the Wednesbury unreasonableness.
    • 12. The Tribunal is to deal with the case raised by the material or evidence from the doctor in Fiji and denying psychological factors and impact on the Applicant after being raped. ”
38. The applicant then sought to read the affidavit filed by her on 1 September 2009. The first annexure to that affidavit was not objected to by the first respondent and was admitted as submissions in support of the applicant’s application.
39. The second document, purported to be a copy of a Royal Fiji Police Statement Form, dated 26 July 2007. That document was objected to by the first respondent. The applicant confirmed that such a document had not been given to the Tribunal by her in support of her application and, accordingly, was rejected. A similar ruling was made in respect of the third document attached to that affidavit, being a medical report from Dr Lokan, dated 1 August 2009.
40. The applicant also sought to read the affidavit, filed by her on 30 November 2009, which annexed, in addition to the Royal Fiji Police Statement Form on which I have already ruled, a copy of a psychological report from Dr Salu Dean dated 8 September 2009. It was unclear the basis upon which that report was being tendered and, for the sake of greater prudence, that document was not objected to by the first respondent and was admitted in support of the applicant’s claims.
41. The applicant sought then to address each of the 12 paragraphs identified in her amended application. In exploring each of those grounds with the applicant, it became apparent that, at the heart of the applicant’s complaint, is a complaint that the Tribunal failed to give her further time to obtain documents in the nature of those that were attached to her affidavit.
42. The applicant told the Court that she did not attend the Tribunal hearing because she did not have the documents to support her case. The applicant submitted that if the Tribunal had the documents, it would have had to have considered those documents. The applicant submitted that she wanted a fair chance to give those documents to the Tribunal.
43. I have referred in some detail to the history of the communications between the applicant and the Tribunal in respect of the Tribunal’s review, and those exchanges are summarised above. None of those exchanges refer to any request by the applicant for further time to provide the particular documents to which she has referred this afternoon.
44. It is apparent from the history of the matter that the applicant was given an opportunity, first, to attend a hearing on 23 April 2009, to which the applicant responded saying she wished to withdraw. The Tribunal then sought to confirm her intention to withdraw in writing and by telephone. In the telephone call to the applicant, as referred to above, the applicant instructed her uncle to speak on her behalf and asked the Tribunal to postpone for two weeks any further action on the withdrawal of the applicant’s review application.
45. Shortly thereafter, the applicant wrote to the Tribunal informing the application that her request to withdraw her application was “merely an accident and/or poor knowledge of the subject”. As referred to above, the letter stated that the applicant was seeking further documents from Fiji, and that she had thought she should withdraw because she was not able to produce documents in time for the hearing. The applicant also stated in that letter that she had taken advice from a qualified migration agent, and, indeed, gave to the Tribunal a document identifying her authorised recipient.
46. Thereafter, as referred to above, the Tribunal wrote to the applicant’s authorised recipient again inviting the applicant to come to a hearing on 20 May 2009. There was no response to that invitation or any communication received by the Tribunal from or on behalf of the applicant and the applicant failed to attend the hearing.
47. In the circumstances, the Tribunal validly exercised the discretion that it has pursuant to s.426A of the Act to decide to make its decision on the review without taking any further action to enable the applicant to appear before it. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to all the information provided by the applicant in support of her claims both to the Department and to the Tribunal.
48. The Tribunal was not satisfied that the applicant had suffered serious harm from any person in Fiji and gave examples of the sort of matters it would have explored with the applicant in relation to her claims, had she attended a hearing. The Tribunal’s findings were open to it on the information and material before it and for the reasons it gave.
49. Ultimately, it is for the applicant to satisfy the relevant decision-maker, in this case the Tribunal, that she meets the criteria for being a refugee. Section 65(1)(b) of the Act mandates that, in the event that the decision-maker is not satisfied that an applicant meets the criteria required for being a refugee, the applicant must be refused a protection visa.
50. At the conclusion of the first respondent’s submissions, the applicant was invited to say anything in response to anything heard by the respondent’s solicitor, or anything further in support of her application. The applicant, for the first time, said that she had telephone conversations in relation to seeking an extension of time to provide documents to the Tribunal.
51. The applicant sought leave of the Court to give that evidence orally. In separate reasons given by me this afternoon, that application was refused.
52. To the extent that the applicant relies on the psychological report, dated 8 September 2009, in support of her claims to this Court, it is not clear to the Court how that report is relevant to the issue for determination before this Court. I note that the report states that the applicant was first seen on 2 September 2009. The report diagnoses the applicant as suffering from acute stress disorder. However, I note that the report is dated 5 months after the Tribunal’s decision record, and does not in any way refer to the applicant’s ability to have participated meaningfully in the Tribunal’s review process or attend the Tribunal hearing. In the circumstances, the report appears not to have any relevant content to the issue before this Court.
53. There is no evidence before this Court that addresses the applicant’s capacity to have attended the hearing. I accept the submission of the solicitor for the first respondent that the evidence before this Court makes clear that the applicant was able to: file an application for a protection visa; file an application for review of the decision refusing her a protection visa; withdraw that application by way of a statutory declaration; have her review application reinstated; instruct a migration agent to assist her; and, to file her application in this Court seeking judicial review of that decision.
54. In the circumstances, the Tribunal’s findings and conclusions were open to it on the material and information before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
55. In relation to the grounds of the amended application (see paragraph 37 above), in summary:
    1. Grounds 1 to 6 of the applicant’s amended application do not identify any error capable of review by this Court and are not proper grounds of review.
    2. Ground 7 is dealt with above in these reasons.
    100. Ground 9 misconceives the meaning of s.424A of the Act. The information referred to by the applicant in ground 9 was not information that was before the Tribunal.
    4. Ground 10 is not a proper ground of review.
    5. Grounds 8 and 11 are not supported by particulars, evidence or relevant submissions.
    6. Ground 12 is dealt with above in these reasons.
56. In the circumstances, none of the complaints made by the applicant in her amended application is made out.
57. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
58. Accordingly, pursuant to s.474 of the Act, this court has no jurisdiction to interfere.
59. The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 11 December 2009