SZIDZ v Minister for Immigration and Citizenship

1 This is an appeal from orders made by Federal Magistrate on 24 August 2006 in which the Federal Magistrate dismissed an application made under the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed the decision of a delegate of the Minister not to grant a protection visa. 2 The role and function of the Federal Magistrates Court was to assess whether the Tribunal had acted according to law and without jurisdictional error. The function of the Federal Magistrates Court was not to hear afresh the factual claims for asylum made by the appellant. Thus one needs to understand what the role of the Tribunal was. The Tribunal's role was to review the delegate's decision. The High Court recently in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 has restated the function of that review. In that review, the administrative or executive decision as to whether the criteria for a protection visa are made out is remade, though in the form of a review of the delegate's decision. The fundamental task relevantly is for the Tribunal to examine the material before it in order for it to consider whether Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol: see s 36(2) of the Migration Act. 3 The Tribunal is obliged to consider the material before it. If the Tribunal, having considered that material, is satisfied of the relevant criteria and in particular whether Australia has protection obligations to the applicant, it must grant a visa. On the other hand, if, in looking at the material before it, the Tribunal is not satisfied of those matters it must not grant a protection visa: see s 65 of the Migration Act. 4 Here the Tribunal reviewed the material from the delegate and came to the view that it was unable to be satisfied of the relevant criteria without inviting the applicant to a hearing. In the letter to the applicant of November 2005, the Tribunal stated that it had considered the material before it in relation to his application, but was "unable to make a decision in your favour on this information alone". The Tribunal then invited the applicant to attend a hearing of the Tribunal "to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons." The appellant did not attend the Tribunal hearing. 5 The Tribunal then dealt with the matter. The relevant findings and reasons of the Tribunal were set out on page 6 of its reasons, in which the following was said: "He has made claims that he was seriously injured during a sustained series of assaults by extremists holding a different interpretation of Islam to himself. He claimed to have been an active advocate for a moderate version of Islam, and to have travelled around Pakistan as a public speaker on this subject. He has also claimed that the police repeatedly failed to offer him any protection at all. These are serious matters and, if true, may well indicate that there is a real chance he would be subjected to further serious harm if he returned to Pakistan. However, beyond his own assertions he has submitted no evidence, apart from gaining a qualification in Pakistan, that he did any of the things he describes. For example, he has submitted no documentary evidence that he was a member of a moderate Islamic (or indeed any) group at any time, that his public speeches were publicised or reported in any way over the years, or that he was ever given medical treatment for serious injuries. These are all areas in which one could reasonably expect there to be some documentary record. Further, he has not explained why, if he feared for his life, he continued to live at his normal address until he came to Australia, rather than moving elsewhere in Lahore, or elsewhere in Pakistan. He has also not explained why he remained at that address for over two months after his Australian visa was issued, rather than leaving the country without delay. His willingness to do these things is not consistent with his claim to have had a fear of serious harm. For these reasons I am unable to establish the relevant facts. The Tribunal is not satisfied, on the evidence before it, that [appellant's name] has a well-founded fear of persecution within the meaning of the Convention." 6 I will come back to the importance of the terms of the Tribunal's reasons shortly. The applicant sought to set aside the decision of the Tribunal. In an amended application in the Federal Magistrates Court, writs of certiorari and mandamus were sought. 7 The grounds of the application were one-and-a-half pages in length. I will annex the first two pages of the amended application to my reasons as annexure A. But it is fair to say that no ground of jurisdictional error was identified, but rather the underlying factual assertions of the claim were set out in summary form. The Magistrate heard the application. 8 The reasons of the Federal Magistrate describe the procedural history of the matter, including the invitation to attend the hearing. The Federal Magistrate then, at [8], stated that it was not disputed in the present case that the applicant received the letter together with its attachments, nor was it disputed that no reply was forwarded by the applicant to the Tribunal. The Federal Magistrate then proceeded to deal with the terms of the amended application and then at [14], [15], [16] and [17] said the following: "[14] In any event, what transpired at the hearing in this matter is that the Applicant has essentially sought to explain his non-appearance before the Tribunal and by inference has sought, as I understand it, to argue that, in a sense, the Tribunal has by its conduct failed to discharge the obligations it has pursuant to s.425 of the Migration Act 1958 (the Migration Act). [15] The chronology of events, in my view, reveals that the Tribunal has in fact discharged the obligations pursuant to s.425 of the Migration Act. It has issued the appropriate invitation. I am satisfied the invitation can properly be described as which is indeed a real and meaningful invitation to attend the hearing. I otherwise accept the submissions made by the First Respondent that whilst the obligation upon the Tribunal under s.425 requires no more than a genuine, real and meaningful and continuing invitation to attend the hearing that in this instance there is no evidence before the court that the Applicant was precluded from taking part in a meaningful way at the hearing. [16] At best, the Applicant from the Bar table has asserted that he was ill on the day of the hearing and was unable to attend. He has not provided evidence to support that assertion and nor has he sought to provide any evidence to explain why he did not reply to the letter inviting him to attend the hearing, that is the letter dated 1 November 2005. [17] I have not required the Applicant to give evidence concerning his illness because even if I were to accept for present purposes that on 5 December 2005 the Applicant was unable to attend the hearing due to illness that does not of itself in my view provide any really proper basis upon which the court can conclude that the Tribunal has failed to discharge its obligations pursuant to s.425 of the Migration Act." 9 As can be seen from the Federal Magistrate's reasons, there was no attempt by the appellant to give evidence in the Court below, that is the Federal Magistrate's Court, to prove or even assert facts which would or might amount to some claim of denial of procedural fairness. In those circumstances the Federal Magistrate was of the view that s 425 of the Migration Act had been complied with and that there was no basis for coming to the view that in dealing with the application in the absence of the appellant was in some way wrongful. 10 I have read the submissions of the Federal Magistrate, and I can see no error in the way he has approached the task which I have just described. No submissions were put to me this morning that there was a failure by the Federal Magistrate to appreciate any matter which may lead to the conclusion that there was any jurisdictional error. Before coming to the last issue in a moment, the appellant's position can be summarised as follows: the Tribunal was bound by the Migration Act to refuse the visa if it could not be satisfied that Australia had protection obligations. 11 It was not satisfied on the material. It invited the applicant to a hearing, saying, in effect, that it could only grant the visa after hearing the appellant. The appellant did not attend and the Tribunal was authorised to deal with the matter in his absence. In those circumstances, it is difficult to understand how the Tribunal's decision can be criticised as long as the Tribunal attended to its fundamental task of looking at the claims and the material before it, which it appears to have done. 12 One issue which conceivably might arise which was not dealt with by the Federal Magistrate could be whether s 424A of the Migration Act was complied with. In this respect I refer to my reasons on SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, in particular at [29]. Looking at the reasons of the Tribunal at p 6 which I have set out above, in my view it is not appropriate to conclude that information provided to the delegate and not the Tribunal was the reason, or part of the reason, for the affirmation decision. The reason for the decision was simply, and no more than, the evaluative conclusion founded on the perceived inadequacy of the information in the sense of absence of detail and extrinsic explanation which had been invited. In my view, it would be an inadequate and misleading statement to say that the information provided by the appellant to the Department was the reason or part of the reason for the decision. The reason for the affirmation of the delegate's decision was the lack of requested further assistance and explanation. In these circumstances I do not think that the Tribunal has failed to comply with s 424A. 13 In the circumstances, where the appellant did not attend the Tribunal, I am unable to conclude that the learned Federal Magistrate erred in any way in coming to the conclusion he did in dismissing the application. 14 Therefore, there being no error in the approach of the Federal Magistrate, there is no alternative in my view but to dismiss the appeal. For the above reasons, in my view, the appeal should be dismissed with costs and the Court so orders. 15 I also order that the first respondent be renamed Minister for Immigration and Citizenship. 16 The orders of the Court are: (1) That the name of the first respondent be amended to Minister for Immigration and Citizenship. (2) The appeal be dismissed. (3) The appellant pay the respondents' costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.