FEDERAL COURT OF AUSTRALIA

SZOZO v Minister for Immigration and Citizenship [2011] FCA 944

THE COURT ORDERS THAT:

1.    The notice of appeal filed on 18 April 2011 be dismissed.

2.    The appellant pay the first respondent’s costs of this appeal fixed in the sum of $2,930.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of a Federal Magistrate delivered on 6 May 2011, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

2    The appellant is a citizen of India who arrived in Australia on 19 May 2008. On 17 June 2010 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship refused that application on 25 October 2010. On 22 November 2010 the appellant applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate’s decision in its decision record dated 12 January 2011.

CLAIMS OF political and RELIGIOUS PERSECUTION

3    The appellant claimed that he was in danger of persecution by reason of his political and religious beliefs. The appellant was born in Dala Gurdaspur, Punjab, India and claimed that he is of the Sikh faith and had been an active member of the All India Sikh Student Federation. He also claimed that he was a member of the Akali Dal party which supports the Khalistan movement for an independent Sikh homeland.

4    The appellant made a number of claims that he was persecuted as a result of these political and religious beliefs. He stated that he was followed by security agents and detained by police who mistreated him and tortured him over a three month period. After his release, he stated that he was again detained and assaulted by police, but was released by ‘the court’. He stated that thereafter his family and he received threats.

5    The only material the appellant provided to the delegate to support his application was a three page written statement, a copy of his passport and a copy of an ‘e-business e visa’.

6    The appellant was invited to an interview with the delegate in a letter dated 28 September 2010. The appellant did not attend that interview. Subsequently, the delegate decided she could not investigate his claims further and refused the visa application.

THE TRIBUNAL AFFIRMED THE DELEGATE’S DECISION

7    As noted above, the appellant applied to the Tribunal for a review of the delegate’s decision. On 9 December, the appellant was invited in writing to appear before the Tribunal at a hearing to be held on 12 January 2011. The appellant did not attend that hearing, nor did he contact the Tribunal to respond to its written invitation. The Tribunal therefore decided to proceed in the appellant’s absence acting under s 326A (sic 426A – see below) of the Migration Act 1958 (Cth) (“the Act”).

8    Because of the appellant’s non-appearance, the Tribunal was unable to explore his claims in more detail. Without this opportunity, the Tribunal was unable to be satisfied that the appellant would suffer serious harm if he returned to India, and it was not satisfied that he had a well-founded fear of persecution because of his political opinions, or for any other Convention reason. As a consequence, the Tribunal could not be satisfied that the appellant was a person to whom Australia owed obligations under the 1951 Convention Relating to the Status of Refugees as amended.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

9    In his amended application for judicial review filed in the Federal Magistrates Court on 10 February 2011, the appellant sought the following orders:

(1)    An order that the decision of the Tribunal or Minister be quashed;

(2)    A writ of mandamus directed to the Tribunal or Minister, requiring them to determine the Applicant’s application according to law;

(3)    A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the grounds of this application; and

(4)    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.

10    The appellant did attend the hearing of his review application before the Federal Magistrate on 1 April. His Honour confirmed with the appellant that he had not attended the interview with the delegate when invited to do so by the Department. The appellant stated that he had been advised by relatives that attending the delegate’s interview was unimportant. More significantly, the Federal Magistrate also confirmed that the appellant had failed to attend the Tribunal hearing on 12 January 2011. He told his Honour he was “busy that day”.

11    At [42]–[43] of the Federal Magistrate’s reasons for judgment, his Honour addressed the fact that the appellant had not appeared before the Tribunal and the fact that, partly as a result of his absence from that hearing, an unfavourable decision was made against him. His Honour was satisfied that the appellant was properly invited to appear to elaborate on his application but chose not to avail himself of that opportunity.

12    The Federal Magistrate noted that none of the appellant’s grounds of review, nor the three page written statement he submitted, alleged jurisdictional error on the part of the Tribunal. Instead, the appellant had simply restated his earlier factual claims.

13    The Federal Magistrate did identify one typographical error contained within the Tribunal’s decision record. That error was to incorrectly cite the relevant section of the Act (s 426A – see [7] above) which granted the Tribunal the power to proceed to determine the review in the absence of the appellant. His Honour was satisfied that whilst this may have involved an error of law, that error was not a jurisdictional error.

14    Accordingly, the Federal Magistrate was satisfied that the appellant had not provided the Court with any ground upon which a jurisdictional error could be found to exist and dismissed the appellant’s application for judicial review.

THE CONDUCT OF THE PRESENT APPEAL

15    On 18 April 2011, the appellant filed a notice of appeal in this Court. That notice alleges (without alteration):

1.    That the appellant’s case was not considered by the learned FMC. The respondents have failed to consider the applicant case. by not going to the question of law. The respondent no 1 delegate of the Minister has totally no knowledge of about the country of information, as it is evident from their statement of decision. The question of real danger to the life of the applicant being a Sikh by ethnicity was not considered and the court decision was based on the conjectures and on self assessed matters, which infact does not form an administrative decision.

2.    That the member of the RRT has not discussed the key elements of being a refugee in case of the applicant, although the statement of decision issued by the RRT always carried on the same wording as it has happened in applicant cousin case. The duty of the tribunal although in the eyes of the law they are an administrative decision making tribunals, but they still are bound under the common law to go into the question of merit and law. It is not enough to say that the decision maker which encompasses respondent no 1 ad 2 are to be satisfied. The question is what is the required standard of their satisfaction? As the applicant by way of a submission, told the respondents that the member of Khalistan movements are being hard hit and are being killed in so called extra-judicial killings. Naming it as a terrorist group.

3.    That it is very evident from the human rights commission and many other organization that are related to human just causes, recently the authorities have killed senior and young members of the Khalistan movement, naming them as terrorist, apart from his there are so many evidences on the record that many young activist students from Sikh organization are either kidnapped and later on done to death naming it as submitted above terrorist. From the above it is fair to assume that the applicant has a well founded of his being taken away by the authorities in his country of origin. It is enough that the reports of the world wide human rights organization have reported the killings of the Sikh community the applicant has lay down in his evidence that the applicant has a well founded of his life and has under gone persecutions, harassment and the act of violence’s. All these matters were not taken into the account, as such amounting to a jurisdictional error. As such the applicant request the Honorable court to intervene in this matter, as far as the act of jurisdictional and other legal errors are concerned, as per country information report.

4.    That the appellant has an arguable case, there are many legal and otherwise jurisdictional errors. The applicant/appellant shall be deprived of his valuable right, and of being non-heard in this matter. The appellant requests that the matter of the appellant may kindly be heard to meet the interest of justice. There may occur an act of injustice if the appellant’s case is not heard.

16    At the hearing before me on 15 August 2011, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Wood appeared as counsel for the first respondent. In brief oral submissions the appellant essentially reiterated his claims that he suffered persecution while he was living in India and would do so again if he had to return.

CONSIDERATION

17    I have set out the appellant’s notice of appeal in full because it serves to demonstrate at least two things. First, the only attempt he has made to point to any error on the part of the Federal Magistrate is the statement in the first line: “That the appellant’s case was not considered by the learned FMC”. Secondly, its main thrust is to quibble with the Tribunal’s fact finding exercise.

18    As to the first of these matters, I have examined the Federal Magistrate’s reasons for decision and it is clear from them that his Honour did consider the matters put to him by the appellant. The appellant’s difficulty, however, is that all of those matters involve various factual aspects of his claims. For example, the Federal Magistrate records in his decision (at [27]) that:

The Applicant told the Court that there was still violence against Sikhs in India. He said that a friend of his had also lodged an application for a protection visa. His father was arrested in relation to a bomb blast in India. He had been tortured by the police. There were other cases similar to those.

19    This leads me to the second thing demonstrated by the appellant’s notice of appeal. That is, that his quibbling with the fact finding exercise of the Tribunal clearly amounts to an attempt to seek a merits review of the Tribunal’s decision. It is well-established that neither the Federal Magistrates Court, nor this Court, can review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. The Court is not concerned with whether the decision was unjust, only with whether it was lawfully made: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6.

20    These observations apply equally to the affidavit the appellant has filed in support of his notice of appeal in this Court. This affidavit is identical to his written submissions. It is also very similar, if not identical, to the three page written statement the appellant submitted in support of his original application. In other words, this affidavit simply restates the appellant’s factual claims.

21    The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.

22    There can be no doubt the Tribunal clearly had the power to proceed under s 426A(1) in the appellant’s absence. While that power must be exercised reasonably and cannot be exercised capriciously, the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 per Greenwood J at [20]–[21]. Nor is there any obligation on the Tribunal to make any inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

23    The Federal Magistrate was satisfied that the Tribunal had not exceeded its powers by proceeding pursuant to s 426A of the Act and, in the circumstances, I am unable to detect any relevant error in that conclusion.

24    For these reasons, the appellant’s appeal must be dismissed. I will so order and also order that the appellant pay the first respondent’s costs of this appeal fixed in the sum of $2,930.

Associate:

Dated:    19 August 2011