FEDERAL COURT OF AUSTRALIA

BRGAD of 2008 v Minister for Immigration and Citizenship [2008] FCA 1740

MIGRATION – application for a protection (Class XA) visa

Held: application dismissed with costs

Migration Act 1958 (Cth) s 426A, s 474

Abebe v The Commonwealth (1999) 197 CLR 510 cited

Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 cited

Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223 cited

BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734 related

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 cited

QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918 cited

S157/2002 v Commonwealth (2003) 211 CLR 476 cited

SZGFG v Minister for Immigration and Citizenship [2007] FCA 483 cited

BRGAD OF 2008 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

QUD 142 of 2008

COLLIER J

18 NOVEMBER 2008

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals to this Court from a decision of Jarret FM dated 26 May 2008 (BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 January 2008. The Tribunal had affirmed a decision of a delegate of the first respondent dated 19 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 on a Subclass 456 Temp Business Visa and applied for a protection (class XA) visa on 20 September 2007. The appellant claimed to have suffered persecution from the current Indonesian government on the basis that he expressed a preference for the former Indonesian leader, Mr Soeharto.

3                     The appellant claims he was imprisoned in Indonesia for a one month period because he had been critical of the new Indonesian government and expressed a preference for Mr Soeharto. The appellant asserts that following his graduation from University, the police visited him frequently. On one occasion the police came to his house and asked him what he thought of the Indonesian government. When he answered that he hated the new government, he was beaten, arrested and imprisoned for one month.

4                     The appellant also claims that the new Indonesian government has made life for his family hard because his mother was a member of the Soeharto government while his father has been accused of being a “Soeharto person”.

DECISION OF THE TRIBUNAL

5                     On 29 November 2007, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on the basis of that information alone. The Tribunal invited the appellant to attend a hearing on 10 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 Tribunal did not receive a response from the appellant and he was not present at the Tribunal hearing.

6                     The Tribunal found that the appellant had made a number of claims that had not been substantiated. The claims included being:

·                    beaten, arrested and imprisoned by the Indonesian police for stating he hated the Indonesian government; and

·                    a member of a family unit in which his mother worked for the Soeharto government and his father was suspected of being one of Soeharto’s people.

7                     Based on the information before it and in the absence of either attendance by the appellant at the hearing or further material submitted by the appellant, the Tribunal was not satisfied the appellant was a person owed protection obligations under the Refugee Convention as having a well-founded fear of persecution.

8                     Accordingly, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection (class XA) visa.

DECISION OF JARRETT FM

9                     The appellant filed an application for review of the decision of the Tribunal on 7 March 2008. The application contained the following grounds:

1.                  There was no evidence of the other materials to justify the making of the decision [sic].

2.                  I am entitled to a protection visa.

3.                  I was prosecuted by the current Indonesian Government because I support our previous Government.

10                  In dismissing the application of the appellant, his Honour made the following comments with respect to the grounds of review:

·                    the grounds raised by the appellant merely sought to re-agitate the facts under review and therefore did not constitute jurisdictional error;

·                    the first ground highlighted the difficulty with the appellant’s application in that there was no evidence or other material before the Tribunal to justify making any decision other than dismissing the application of the appellant.

11                  In general, his Honour found the decision arrived at by the Tribunal had not been attended by any error. As the appellant was invited to attend the hearing and was warned of the consequences of non-attendance, the Tribunal were entitled to make a decision in the appellant’s absence pursuant to s 426A of the Act. That process was not attended by any error.

HEARING BEFORE THIS COURT

12                  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 real chance of risk of being jailed if the applicant return to her original country [sic].

2.                  There was no evidence or the other materials to justify the making of the decision [sic].

3.                  It is not reasonable for the Tribunal to deny my application for a protection visa.

13                  The appellant has sought the following orders:

1.                  The decision of the Refugee Review Tribunal be set aside.

2.                  An order requiring the second respondent reconsider my application for a protection visa according to law.

3.                  Costs.

14                  This matter was originally set down for hearing yesterday morning. At that time the appellant appeared in person and the respondent was represented by Mr Maycock. It was immediately apparent that the appellant was in need of an interpreter. Despite the onus being on the appellant to inform the Court of his need for an interpreter and a letter from Registry dated 9 July 2008 asking the appellant to inform the Court if an interpreter was required the Court was not so advised. I adjourned the hearing to today in order for an interpreter to be located for the purposes of the hearing.

15                  At the hearing this afternoon, the appellant was again self-represented but an interpreter accompanied him. In summary, the appellant submitted:

·                    he would like permission to stay longer in Australia;

·                    he does not feel safe when he returns to Indonesia;

·                    there is a great deal of pressure on him and his family in Indonesia;

·                    he is not able to maintain a decent way of life or a decent career in Indonesia;

·                    he would like protection from Australia;

·                    he knows his position in Australia is not strong because he cannot prove his case. The Indonesian authorities conceal details of his case from people overseas.

16                  The first respondent was represented by its solicitor, Mr Hickey. Mr Hickey relied in substance on his written submissions.

CONSIDERATION

17                  The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is that of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476.

18                  In my view the grounds of appeal stated in the appellant’s Notice of Appeal are without substance. No error in the decision of the Federal Magistrate has been demonstrated by the appellant. I form this view for the following reasons.

19                  In relation to the first ground of appeal it is clear that the Tribunal had informed the appellant that it was unable to make a decision in his favour on the basis of the material before it. The Tribunal observed in its reasons for decision that the appellant neither sent further material, nor took the opportunity to attend a hearing and present his claims orally. The learned Federal Magistrate correctly pointed out that a visa must only be granted where the Minister is satisfied the prescribed criteria has been fulfilled (SZGFG v Minister for Immigration and Citizenship [2007] FCA 483). Further, it is clear that it is for the applicant before the Tribunal to make his or her case to the Tribunal – the Tribunal is under no obligation to make the case for the applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576). The Tribunal made a decision based on such material as was before it, and the appellant cannot now claim that the Tribunal erred in making that decision.

20                  In my view the appellant’s first ground of appeal is not substantiated.

21                  The appellant’s second ground of appeal is identical to the first ground of review before Jarrett FM. In that case his Honour said at [12]:

The first ground of the current application perhaps highlights the difficulty for the applicant, namely that there was no evidence or other materials to justify the making of the decision. In my view there was no evidence or other materials before the Refugee Review Tribunal that would justify making a decision other than the decision that it made in the circumstances of this case.

(BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734)

22                  I agree with the comments of Jarrett FM. The difficulty faced by the appellant in establishing jurisdictional error in relation to this ground of appeal is that the lack of evidence before the Tribunal was the very reason why the application was dismissed. This ground of appeal is not an allegation of jurisdictional error. Instead, the appellant is seeking to reopen the decision of the Tribunal. The Court cannot engage in review of the merits of the appellant’s case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

23                  In my view the appellant’s second ground of appeal is not substantiated.

24                  In relation to the appellant’s third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal’s decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that “unreasonableness” does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant’s third ground of appeal is not substantiated.

25                  Finally, I consider that the oral submissions of the appellant today constituted an attempt to re-agitate his claims before the Tribunal. It is not the function of this Court to review the merits of the Tribunal’s decision.

26                  I am unable to identify any error in the decision of the learned Federal Magistrate below. Accordingly, the appropriate order is to dismiss the appeal with costs.

Associate:

Dated:         18 November 2008