FEDERAL COURT OF AUSTRALIA

SZHTY v Minister for Immigration and Citizenship [2007] FCA 1223

SZHTY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 889 OF 2007

STONE J

10 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed

2.                  The appellant pay the first respondent’s costs fixed in the amount of $1,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant is a citizen of the Philippines who arrived in Australia on 2 May 2005.  Her application for a protection visa was made shortly after her arrival and was dismissed in turn by a delegate of the first respondent and the Refugee Review Tribunal.  Her application for judicial review was dismissed by a Federal Magistrate on 30 April 2007:[2007] FMCA 696. 

PROCEDURAL BACKGROUND

Protection visa application

2                     The appellant claims to live in a Muslim dominated region of the Philippines.  She claims that her brother-in-law, who is a Christian, was elected to the local council and subsequently she was victimised in her workplace because of his political opinions, presumably on the basis that those opinions were imputed to her.  She also claimed that the harassment was related to disputes over the ownership of certain land.  She claims that members of her family have been killed for political reasons, and that the caretaker of the disputed land had been “gunned down”. 

Proceedings before the Tribunal

3                     By letter of 28 September 2005, the Tribunal advised the appellant that it was unable to make a favourable decision on the material before it and invited the appellant to attend a hearing scheduled for 4 November 2005.  The appellant advised the Tribunal that she did not wish to attend the hearing and consented to the Tribunal proceeding to make a decision in her absence.  Not surprisingly the Tribunal decided that, on the material before it, it was not satisfied that the criteria for the grant of a protection visa had been satisfied.  Consequently the Tribunal rejected the appellant’s application.

Proceedings before the Federal Magistrate

4                     The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  His Honour found that no reviewable error on the part of the Tribunal had been established.  In response to submissions put by the appellant, which his Honour said were prepared by her migration agent Mr Chandra Jayawardena, the Federal Magistrate cited Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and stated (at [6]) that:

[I]t is clear that the Tribunal can fail to reach the state of satisfaction required because insufficient evidence is provided to it.  That is what happened in the instant case and therefore the Tribunal did not fall into jurisdictional error in concluding that it was unable to grant a visa and was required to affirm the decision under review.

THIS APPEAL

5                     On 21 May 2007, the appellant filed a notice of appeal in this Court, setting out two grounds of appeal.  Both assert that the Federal Magistrate erred in failing to detect errors committed by the Tribunal.  The grounds of appeal and the subsequent written submissions of the appellant are convoluted and confused.  Although wrapped in language that suggests legal technicalities they could only sensibly be interpreted as an attempt to have this Court review the factual findings made by the Tribunal.  From the bar table, the appellant said that she had drafted the submissions.  This is surprising as they seem to have been drafted by someone who had a reasonable familiarity with legal language and the provisions of the Migration Act,albeit with little, if any, understanding.

6                     The first error alleged by the appellant is said to be the Tribunal’s failure to evaluate the appellant’s fears under s 91R, because it characterised the appellant’s experiences as discrimination and harassment rather than “facing threats and fears”.  This submission patently has no merit.

7                     The second error is said to be that the Tribunal failed “to reach the required satisfaction under sec. 414”.  Additionally, it is asserted that by failing to write to the appellant pursuant to s 424 to seek clarification of her claims, the Tribunal failed to comply with s 420(1) of the Act, which provides that the Tribunal should strive to provide a review mechanism that is fair and just.

8                     Section 414 does not require the Tribunal to be satisfied of anything.  It merely requires, with certain irrelevant exceptions, the Tribunal to review a decision when a valid application is made.  The Tribunal did so. 

9                     Whilst s 424 of the Act empowers the Tribunal to invite people to give additional information, it is a purely discretionary power.  Section 422B precludes the operation of normal principles of natural justice.  Further, s 420(1) merely requires the Tribunal to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.  It does affect the validity of any decision made following a review that does not achieve those aspirations.  It is well established that the Tribunal is not obliged to seek out information that supports an applicant’s case; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

10                  In her written submissions the appellant complained that the Tribunal failed to comply with s 420, in that its decision was not “fair, just and economical” as the Tribunal did not accommodate the difficulties the appellant faced in travelling from Griffith to attend a hearing in Sydney.  The Tribunal is not required to accommodate such difficulties, and committed no jurisdictional error in failing to do so. 

11                  The appellant also submitted that the hearing invitation letter “did not mention the importance and significance of the hearing”.  This suggestion must be rejected.  The first sentence of the letter clearly states that the “Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”  It is clear from this sentence that the material provided up to that point would lead to rejection of the application.  The second ground also alleges that the Tribunal’s decision “is not a decision”, as the Tribunal clearly stated that it required more evidence.  The Federal Magistrate squarely addressed this issue in his reasons, where his Honour rejected the contention that the Tribunal is required to come to some positive finding of fact, and supported that rejection with an extensive quotation from Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.

12                  The appellant’s final written contention is that the Tribunal should have written to the appellant pursuant to s 424 when it received her negative response to the hearing invitation, and made alternative arrangements for the hearing to either take place by video, or to be held in Griffith or some other convenient location.  Section 426A provides that if the Tribunal issues an invitation and an applicant does not appear, it is not required to take any further action to enable the applicant to appear before it.

Conclusion

13                  For the above reasons the appeal must be dismissed with costs.  The Minister seeks costs fixed in the amount of $1800.  From experience in similar matters I am inclined to think that this is on the high side.  The Minister did not oppose the making of a costs order in the lesser amount of $1,500.  I so order. 

Associate:

Dated:         13 August 2007