FEDERAL COURT OF AUSTRALIA

MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The name of the first respondent be amended to ‘Minister for Immigration and Border Protection’.

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

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

REASONS FOR JUDGMENT

1    By notice of appeal filed 11 July 2013 the appellant appeals from a decision of Judge Hartnett of the Federal Circuit Court of Australia delivered on 21 June 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 December 2012.

Background and claims

2    The appellant is an Indonesian citizen born on 8 October 1963 who arrived in Australia on 11 April 2013. On 16 May 2012 the appellant applied for a protection visa. A delegate of the first respondent refused the visa application on 20 September 2012. On 11 October 2012 the appellant applied to the Tribunal for review of the delegate’s decision.

3    The appellant claimed to be ethnically Chinese and a Buddhist. Due to his Chinese race, the appellant claimed to be subject to discrimination and ill-treatment in the workplace in Indonesia and that he left his first workplace because of the mistreatment. He claimed to have left a second workplace after an incident resulted in his colleagues assaulting him and his family. The appellant claimed that he was unable to find employment because he was Chinese and that he was forced to open his own business, which was ultimately unsuccessful because the local Indonesians stole his goods. The appellant claimed that in 2011 the former colleagues that assaulted his family came to his store robbed him of his valuable goods and assaulted him again. The appellant claimed that he therefore moved to Australia to seek protection.

The tribunal’s decision

4    The appellant failed to attend the Tribunal hearing to provide further evidence and arguments in support of his claims. On the material before it, the Tribunal considered the appellant’s claims to be too general, lacking in detail and unsupported by evidence. The Tribunal was not satisfied that the appellant’s claims were supported by the facts, that there was a real risk that the appellant would face serious harm for a Convention reason or that the appellant satisfied the criteria for complementary protection. The Tribunal, therefore, affirmed the decision of the delegate to refuse the grant of a protection visa to the appellant.

the proceedings in the federal circuit court of australia

5    In his application to the Federal Circuit Court, the appellant relied upon the following grounds:

1.    The Refugee Review Tribunal failed to carry out its statutory duty.

2.    The Tribunal failed to provide the applicant with an opportunity to comment on his claim.

3.    The Tribunal breached s 424A of Migration Act 1958 in making its decision.

6    Her Honour considered the appellant’s claims against the Tribunal’s decision record and found that the grounds were unmeritorious. Her Honour found that the Tribunal had complied with its statutory duties, and specifically, that it was entitled to proceed under s 426 of the Migration Act 1958 (Cth) having already complied with ss 425 and 424A of the Act. The application was, therefore, dismissed with costs.

the appeal proceeding

7    The appellant now seeks review of Judge Hartnett’s decision and advances the following grounds of review:

1.    Federal Circuit Court Judge Hartnett failed to consider Refugee Review Tribunal did not carry out its statutory duty. [sic]

2.    The Tribunal failed to provide the applicant with an opportunity to comment on his claim for a visa.

The appellant did not file written submissions in support of his appeal but made oral submissions in relation to each of his two grounds of appeal which I will deal with in turn.

8    The appellate jurisdiction of this Court to review a decision of the Federal Circuit Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and is limited to whether the decision of the Federal Circuit Court is affected by jurisdictional error: SZLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]; SZMFL v Minister for Immigration [2009] FCA 146. It is not concerned with merits review or with the judicial review of the decision of the Tribunal. What the appellant is, therefore, required to show is that the decision of the Federal Circuit Court was based upon an error of law. The Court is not able to consider for itself whether it would have made a different decision from that made by the Federal Circuit Court or by an earlier decision maker but, rather, whether the specific decision under appeal was not permitted by law.

9    The appellant’s first ground of appeal was expressed in general terms and without specifically identifying any particular respect in which her Honour was said to have failed in her duty. At the hearing I asked the appellant what he claimed that the Federal Circuit Court Judge did wrong. The appellant replied generally that her Honour erred in law by forcing her own opinions upon the appellant during the hearing but there was nothing identified by the appellant which amounted to an appellable error. Her Honour’s judgment at paragraph 20 considered whether the Tribunal had carried out its statutory duty and the Tribunal’s reasons demonstrate that it had discharged its statutory obligations. Ground 1, therefore, is not made out.

10    The appellant’s second ground of appeal as articulated in his notice of appeal relates to a claim that the Tribunal failed to provide him with the opportunity to comment on his claims. It became clear during the course of the hearing, however, that the appellant’s complaint was that the Tribunal and the Federal Circuit Court Judge did not believe what he had claimed. The Tribunal and the Federal Circuit Court Judge were entitled to disbelieve the appellant on the insufficient material before them. The applicant did not provide any detailed information in support of his claims of discrimination and mistreatment at his various workplaces, of his unsuccessful search for employment or in regards to allegations of assault and robbery. Furthermore, there had been no error on the part of the Tribunal by failing to provide the appellant with the opportunity to comment on his claims. In compliance with ss 425 and 425A of the Migration Act 1958 (Cth), the Tribunal invited the applicant to a hearing, which he did not attend. At the hearing before Judge Hartnett, the appellant asserted that he had not received the invitation from the Tribunal or had received it out of time. However, as the authorities to which her Honour referred make clear, the Tribunal was entitled to proceed under s 426A without making further inquiries. The relevant question to ask, as her Honour correctly asked, was whether the Tribunal had complied with s 426A (being the provision under which it was proceeding) rather than whether the appellant had received the invitation to attend. In SZIGQ v The Minister for Immigration and Citizenship [2007] FCA 328, which her Honour referred to, quoted and applied, Downes J had said at [5]:

However, the authorities are clear that the reason for non-attendance does not matter. If the Tribunal has complied with ss 426 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries.

There is nothing in her Honour’s decision showing error in application of these principles.

11    Accordingly, the appeal will be dismissed.

Associate:

Dated:    12 December 2013