BRGAG of 2008 v Minister for Immigration and Citizenship

Federal Court of Australia|2008-11-18|Before: Collier J

REASONS FOR JUDGMENT 1 The appellant appeals to this Court from a decision of Jarret FM dated 5 June 2008 (BRGAG OF 2008 v Minister for Immigration and Citizenship [2008] FMCA 722). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister dated 16 October 2008 wherein the delegate refused the grant of a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act).

BACKGROUND 2 The appellant is a citizen of the Republic of Indonesia. He arrived in Australia on 26 August 2007 and applied for a protection (class XA) visa on 20 September 2007. The appellant claims that he is at risk of being persecuted by the Indonesian authorities. 3 The appellant claims that prior to 1998 he had a very close relationship with the Soeharto government. He claims that after 1998 he fell out of favour with the new Indonesian government because of that relationship. 4 The appellant claims that in 2001 the Indonesian government sent police to the appellant's workplace and questioned him. Despite finding no evidence of wrong doing, the appellant claims that the police believed the appellant had a plot to overthrow the new government and imprisoned him for six months.

DECISION OF THE TRIBUNAL 5 Following the decision of a delegate of the Minister to refuse the grant of a protection (class XA) visa to the appellant, on 16 November 2007 the appellant applied to the Tribunal for review of the delegate's decision. 6 On 24 December 2007, the Tribunal sent a letter by registered post to the appellant advising him that, based on the information before the Tribunal, it was unable to make a favourable decision. The appellant was invited to attend a hearing on 29 January 2008 to present arguments and give oral evidence. The appellant was also advised that non-attendance at the hearing could lead to a decision being entered without further notice. The appellant did not respond to the Tribunal's letter and the appellant was not present at the Tribunal hearing. 7 In a typed statement attached to the application for protection visa, the appellant made the following assertions: · he was at risk of being persecuted by Indonesian authorities; · he had a close relationship with the Soeharto government; · the new government did not like him because he had a good relationship with the old government; · the new government saw him as its enemy; · police were sent to his company in 2001 by the new government; · police surveyed his relationship with the new government; · they thought he had a plot to overthrow the current government; · he was imprisoned for six months despite the police having no evidence; and · he came to Australia to avoid the risk of being imprisoned by the government. 8 As the appellant did not attend the Tribunal hearing, the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it. 9 In its Statement of Decision and Reasons, the Tribunal said, in summary: · the mere fact that a person claims fear of persecution for a particular reason does not establish either genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed; · the onus is on an applicant to satisfy the Tribunal that all statutory elements are made out; · the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant; · as the appellant did not attend an oral hearing, his claims could not be tested by the Tribunal. The Tribunal had only the information contained in the written material before it from which to make a determination; · there was nothing to support the appellant's claims other than his unsubstantiated assertions; · there were insufficient particulars provided by the appellant to enable the Tribunal to be satisfied that the events to which the appellant had attested had actually occurred; 10 The Tribunal could not be satisfied on the evidence that: · the appellant faced a real chance of persecution should he return to Indonesia now or in the foreseeable future; or · the appellant had a well-founded fear of persecution for a Convention reason. 11 Accordingly the Tribunal affirmed the decision of the delegate not to grant the appellant a protection (class XA) visa pursuant to s 426A of the Act.

DECISION OF JARRETT FM 12 The appellant filed an application for review of the decision of the Tribunal with the Federal Magistrates Court on 18 March 2008. The appellant listed the following grounds of application: 1. I really fear returning to Indonesia because I supported our former president Mr Suharto [sic]. 2. The Tribunal failed to consider I was ever put into jail when I was in Indonesia. 3. The Tribunal member did not fully consider that my fear is well-founded. 13 In dismissing the application of the appellant his Honour made the following comments in his reasons for judgment: · it is not the Tribunal's role to play the contradictor: SZGFG v Minister for Immigration and Citizenship [2007] FCA 483; · although proceedings before the Tribunal are inquisitorial as opposed to adversarial, the Tribunal must be fair. It is for the appellant to advance its case using the evidence and argument it wishes to advance; · where the Tribunal clearly indicated to the appellant it was unable to make a favourable decision without a hearing and the appellant does not attend the hearing, there is not really any other decision the Tribunal can reach but to affirm the decision of the delegate; · the Tribunal was open to adopt the procedure it adopted in the circumstances. The Tribunal met the required conditions before proceeding in the appellant's absence and no error can be established by the Tribunal: SZGGG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 528; Bin Xiev v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172; · having sent an invitation or notice to appear, if the appellant fails to attend, it is inevitable that the application will be refused: SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201 at [19]; NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119.

HEARING BEFORE THIS COURT 14 On 10 June 2008 the appellant filed a Notice of Appeal in this Court raising the following three grounds of appeal: 1. The Tribunal failed to consider the relevant information of my claims. 2. The Tribunal does not fully consider my current situation. 3. The Tribunal failed to consider the likely chance of being jailed if I go back to Indonesia. 15 The appellant has sought the following orders: 1. The orders of the Federal Magistrates Court dated 14 February 2007 should be quashed. 2. There be an order requiring the Second Respondent reconsider the applicant's claims according to law. 16 At the hearing of the appeal before me, the appellant was self-represented and did not file written submissions. The first respondent was represented in Court by Mr Maycock, having previously filed written submissions on 13 November 2008. 17 Through the interpreter, the appellant submitted in summary: · he was traumatized at the thought of returning to Indonesia; · because of his activities in Indonesia, as a result of which he was regarded as opposing the new Indonesian government, he was under close observation and had limited opportunities to, for example, join organisations; · he has not been able to obtain proof of his relationship with the previous Indonesian government but was endeavouring to do so. 18 Mr Maycock for the first respondent was content to rely on his written submissions.

CONSIDERATION 19 The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. In this case I do not consider that the appellant has established either jurisdictional error in the decision of the Tribunal, or appellable error in the decision of the learned Federal Magistrate. 20 In relation to the first ground of appeal it is clear from the decision record of the Tribunal that the Tribunal did consider the appellant's claims and whether the appellant had a well founded fear of persecution. As the appellant did not attend the Tribunal hearing or submit any further material the Tribunal was unable to consider further information. It is not for the Tribunal to make a case for the appellant - rather it is for the applicant before the Tribunal to make his or her case for consideration by the Tribunal. 21 In relation to the second ground of appeal I consider that there is little to distinguish this ground from the first ground of appeal to the extent that the appellant submits that the Tribunal did not give proper consideration to his case. I have nothing to add to my conclusion in relation to the first ground of appeal. 22 In relation to the third ground of appeal, his Honour noted that the Tribunal considered the claims of the appellant relating to being beaten by police, imprisoned for one month and the possibility of further prosecution, and that the Tribunal found that these claims were unsubstantiated. As the appellant did not attend the Tribunal hearing, the Tribunal was unable to consider any additional facts relating to the assertions of the appellant. To the extent that the appellant seeks to re-agitate the facts before the Tribunal, this is not the role of the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 23 I do not consider the grounds of appeal substantiated. In my view the appropriate order is that the appeal be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 18 November 2008 The Appellant appeared in person.

Solicitor for the First Respondent: Mr S Maycock of Clayton Utz

Solicitor for the Second Respondent: The Second Respondents did not appear

Migration Act 1958(Cth)s 426A, s

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