SZMDG v Minister for Immigration and Citizenship [2008] FCA 1959 (18 November 2008)

Migration Act 1958 (Cth), ss 5(1), 36, 425

Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967

SZMDG v Minister for Immigration and Anor [2008] FMCA 1075 affirmed

SZMDG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1322 of 2008

GRAY J
18 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1322 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	18 NOVEMBER 2008
WHERE MADE:	SYDNEY

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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1322 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	18 NOVEMBER 2008
PLACE:	SYDNEY

1 This appeal is from a judgment of the Federal Magistrates Court, delivered on 1 August 2008 and published as SZMDG v Minister for Immigration and Anor [2008] FMCA 1075. The learned federal magistrate dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 27 February 2008 and handed down or sent on 18 March 2008. The Tribunal affirmed a decision of a delegate of the first respondent to this appeal, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa.

2 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

3 The appellant is a citizen of Indonesia, who arrived in Australia on 14 August 2007. On 27 September 2007, he applied to the Department of Immigration and Citizenship for a protection visa. The decision of the Minister’s delegate refusing to grant the visa was made on 15 November 2007. The appellant then applied to the Tribunal for review of the delegate’s decision.

4 Upon reviewing the material that had been before the delegate of the Minister, the Tribunal found itself unable to make a decision in the appellant’s favour on that information alone. Accordingly, pursuant to s 425 of the Migration Act, the Tribunal sent a written invitation to the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation informed the appellant that the hearing would be on 26 February 2008. The appellant was also invited to advise the Tribunal whether he wished to appear and give oral evidence and present arguments. On 11 February 2008, the appellant advised the Tribunal that he wished to appear.

5 The appellant did not attend at the time and place appointed for the hearing. He has informed me today that he failed to appear because he was unwell. He did not contact the Tribunal to explain his inability to attend. Accordingly, the Tribunal proceeded in his absence. The Tribunal found that there was insufficient information on which it could be satisfied that the appellant would face a real chance of serious harm if he should return to Indonesia.

6 In its reasons for decision, the Tribunal said that, although the appellant had asserted that unidentified customs officers had tried to extort money from him, had created disturbances in the appellant’s shop and had engaged in intimidatory behaviour, there was no specific information as to when the extortion attempts began, how many persons were involved, who they were, how they came to target him, or why they should threaten to kill him simply because he refused their approaches. The appellant also claimed that the police were in league with the customs officers, but had not offered any information about any assistance he might have sought from authorities in Indonesia, or other steps he might have taken before leaving Indonesia. The Tribunal said that, if the appellant had attended the hearing, it would have made attempts to obtain more details from him. Because of the absence of sufficient information, the Tribunal was not able to be satisfied that the appellant had a well-founded fear of harm for a Convention reason, if he should return to Indonesia at the time of the Tribunal’s decision, or in the reasonably foreseeable future.

7 The appellant applied to the Federal Magistrates Court on three grounds. The first was that the Tribunal failed to address the full claims of his application for a protection visa and, therefore, made an error of law. The second was that it was not reasonable for the Tribunal to find that he did not have a well-founded fear of harm for a Convention reason, if he should return to Indonesia. The third ground was that the Tribunal did not consider adequately the relevant information in relation to the appellant’s claims for a protection visa.

8 The federal magistrate rejected each of these grounds. As to the first ground, her Honour held that the Tribunal’s findings were open to it on the material before it and there was no error of law. Her Honour pointed out correctly that the fact that the appellant might disagree with the Tribunal’s findings did not amount to an error of law. The Federal Magistrates Court had no jurisdiction to reconsider the facts. As to the second ground, the federal magistrate considered whether the Tribunal’s decision was so unreasonable that no reasonable decision-maker could have made it. Her Honour rejected that proposition on the basis that the appellant was effectively seeking to challenge the Tribunal’s factual findings and to invite the Court to undertake impermissible merits review. Her Honour found that the third ground of the application was no more than an attempt to raise the same matters as those raised in the first ground.

9 In his notice of appeal, the appellant relied on the same three grounds as those in his application to the Federal Magistrates Court. Although the appellant has appeared before me today without legal representation, he has had the assistance of a qualified interpreter, interpreting from English to Bahasa Indonesia.

10 The appellant has declined my invitation to make submissions either in support of his appeal or in reply to the written outline of submissions on which counsel for the Minister has relied. The federal magistrate also noted that the appellant had not put submissions to the Federal Magistrates Court. I have informed the appellant that it is difficult for him to succeed on his appeal if he makes no submissions. In order to succeed, he must establish error on the part of the federal magistrate. In turn, in order to succeed before the Federal Magistrates Court, the appellant had to show jurisdictional error on the part of the Tribunal. It was not possible for him to succeed by demonstrating that the Tribunal came to an incorrect conclusion on the facts. It would have been necessary for the appellant to show some error of law or error of process on the part of the Tribunal.

11 Even if he had been able to satisfy the Tribunal that he had a well-founded fear of serious harm from the customs officers, and that he could not hope for reasonable protection from other authorities in Indonesia, the appellant would have been in some difficulty in linking that fear with a Convention ground. For that reason, it appears that the appellant’s claim for a protection visa was bound to fail in any event.

12 I have read carefully the reasons for decision of the Tribunal and the reasons for judgment of the federal magistrate. I can detect no jurisdictional error on the part of the Tribunal and no error on the part of the federal magistrate. It follows that the appeal must be dismissed.

13 Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal. Such an order is in accordance with the normal principle that costs follow the event. The appellant has not advanced any reason why that principle should not be followed. I can see no such reason arising from the circumstances of the case. Accordingly, there will be an order that the appellant pay the Minister’s costs of the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

The appellant appeared in person

Counsel for the respondents:	Ms E Knight

The second respondent submitted to any order the Court might make, save as to costs

Solicitor for the respondents:	Australian Government Solicitor

Date of Hearing:	18 November 2008

Date of Judgment:	18 November 2008

Federal Court of Australia

SZMDG v Minister for Immigration and Citizenship [2008] FCA 1959 (18 November 2008)