FEDERAL COURT OF AUSTRALIA SZGCJ v Minister for Immigration & Citizenship [2007] FCA 199 SZGCJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1775 OF 2006 GRAHAM J 19 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1775 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGCJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 19 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the respondent be altered to read 'Minister for Immigration and Citizenship'. 2. Refugee Review Tribunal be added as a second respondent. 3. The appeal be dismissed. 4. 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1775 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGCJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 19 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 What is presently before the Court is a Notice of Appeal filed 15 September 2006 in which the appellant appeals from the whole of the judgment of Federal Magistrate Nicholls handed down on 24 August 2006 in which his Honour dismissed an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal of 23 January 2004 which was handed down on 18 February 2004 and which affirmed a decision by the delegate of the Minister not to grant the appellant a protection visa. 2 The ground of appeal specified in the Notice of Appeal bears little correlation to the oral argument advanced by the appellant in support of the appeal. The ground of appeal was expressed as follows: '2. While I respect judgement of his Honour Nicholls who analysed the circumstances of my claims, I refute the decision made by the Refugee Review Tribunal which overlooked the undeniable fact that I am Alawi, Muslim Syrian accused of dealing with Israel.. Such accusation is very serious & the Tribunal had my details in my application but failed to understand the consequences of such accusation & the subjective fear of persecution which is well founded; therefore the RRT ignored that I am Alawi Muslim & citizen of Syria even though I have never lived in Syria.' 3 The Notice of Appeal was supported by an affidavit of the appellant filed in this Court on 15 September 2006 in which the appellant who has been identified for the purposes of these proceedings as SZGCJ swore: '5. My argument is that when my application was completed I stated that I am Alawi, Syrian citizen but never lived in Syria. I stated that I fear persecution as I would be a target for persecution because of serious accusations against me that I was transferring information about Hezbollah to the Israelis. I claimed that if I return to Lebanon, the Lebanese & Syrian authorities as well as Hezbollah would persecute me. 6. I admit that the Tribunal invited me to a hearing & that my agent said that I have no other materials to present to RRT but I do not agree that the Tribunal properly understood my claim & made a proper investigation to my claim. if the Tribunal have done so, the Tribunal would have no reason to determine that I am not a refugee. 7. I now ask the Honourable Court to see that based on my claim; my at least, my subjective fear of persecution is well founded as an Alawi Muslim Syrian who is accused of dealing with Israel. I ask the Court to see that the Tribunal erred and what happened in July 2006 (war between Hezbolla & Israeli will support my claim which was overlooked by RRT.' 4 When I asked the appellant to identify where it was in the application for a protection visa which he completed that he had stated 'I am Alawi' he was unable to do so. 5 In further support of his Notice of Appeal the appellant read from some notes which he had prepared, matters which he wished to bring to the Court's attention in support of his appeal. 6 Before giving further consideration to his oral submissions it is appropriate to shortly state some of the background facts. The appellant was born in Tripoli in Lebanon on 18 February 1972 of Syrian parents. On 16 August 2000 he was issued with a Syrian passport in Tartous in Syria. On 26 March 2003 he was issued with a Class UL sponsored visitor visa pursuant to which he entered Australia arriving on 7 April 2003. On 12 May 2003 the appellant with the assistance of a migration agent, Mr Camil Shalala, lodged an Application for a Protection (Class XA) Visa. That application amongst other things indicated that the appellant had an older brother who was already living in Australia. On 19 June 2003 the appellant's Application for a Protection (Class XA) Visa was refused by a delegate of the Minister because the appellant did not satisfy the criterion for a protection visa, namely that he was a non-citizen in Australia, to whom the Minister was satisfied Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). 7 Under the Refugees Convention the term, 'Refugee' applies to any person who: '(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...' 8 Under s 65(1) of the Migration Act 1958 (Cth) ('the Act') the Minister is 'to grant the visa' if after considering a valid application for it the Minister is satisfied that, relevantly, the criterion for it prescribed by the Act has been satisfied. If the Minister is not satisfied the Minister is 'to refuse to grant the visa'. 9 On 11 July 2003 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. Section D of the form included the words: 'Please tell us why you consider yourself to be a refugee.' 10 In the appropriate space the words '(See attached Statement)' were inserted. A statement signed by the appellant was attached to the application which provided as follows: 'Further to the information I have provided at my original application [sic] and following the refusal decision dated 19th June 2003 for Protection Visa and as DIMIA ignored the facts of my claims, I am appealing to you on the following basis: . I strongly assure you that I am NOT a national of Lebanon, by citizinship [sic], I am a citizen of Syria and I born in Lebanon. . I strongly assure you that I am still a target for persecution if I returned to Lebanon, even if I am not belonging to any political/religious party. . I still have fear of returning to Lebanon or Syria as I am targeted as a result of serious accusations against me that I was transferring information about "Hizbollah" to the Israelis. . If I return to Lebanon I will be mistreated, detained and persecuted. . Both the Lebanese and Syrian authorities including "Hizbollah" group will targeted me for persecution. . Despite the difficulties I will do many efforts to obtained more evidence regarding my case.' 11 The information provided in the appellant's original application contained a statement, which may have been prepared for use by a third party and later altered to make it appear to be a statement by the appellant. It was undoubtedly signed by the appellant on 12 May 2003. It stated as follows: 'I left Lebanon as a result of fear and threats of the trouble occurred between me and one of the members belonging to "Hizbollah" and I was accused of collaboration and transferring information about "Hizbolla" to the Israelis. I have fear of going back to my countries because I will be caught by the Lebanese and Syrian intelligence. I will be in prison for long time with questioning, torture and hardwork. If I go back to my countries, the Syrian and Lebanese intelligence, members of Hizbolla and their supporters will mistreat me. I think this will be happening to me as happened to others and because as a result to the incident occurred between me and one of Hizbolla's members and specifically at his house during my work in south Lebanon. He threatened me that he will give my name to the Syrian and Lebanese intelligence that I was dealing and transferring information about the Hizbolla's movements to the Israelis. The authorities of my countries will not protected me because the accusations that I was collaboration with the Israelis and this is considered as against the law and the accused person must be in jail for a long period. I will provide more details during the interview.' 12 Following the lodgement of the Application for Review with the Tribunal, the Tribunal wrote a letter to the appellant at the address which he had provided in his application for review with a copy to his migration agent, Mr Shalala, in which the Tribunal invited the appellant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. That hearing was fixed for level 29, Pacific Tower Building, 201 Elizabeth Street, Sydney at 1:00 pm on Wednesday, 21 January 2004. 13 By letter dated 19 January 2004 directed to the Deputy Registrar of the Tribunal and which was received by the Tribunal on the same day the appellant stated: 'I kindly ask the presiding member to assess my application on the material available, as I am unable to attend the hearing on 21st January 2004, because I have no other materials to present to the RRT.' 14 In the affidavit filed with his Notice of Appeal in this Court, the appellant admitted, as indicated above, that he had been invited by the Tribunal to a hearing. In his oral submissions before me, the appellant contends that he was ready to attend a hearing before the Tribunal on 21 January 2004 and that he wanted to attend such a hearing and that he considered it to be to his benefit to attend such a hearing. He urges that his migration agent, Mr Shalala, informed him that it was not important for him to attend and later he contended that he had been informed by his migration agent that he did not have much hope whether he attended or not. As I understand his submissions, he says it was for that reason that he did not attend the appointed Tribunal hearing. 15 No such allegation was advanced in the Amended Application filed by the appellant in the Federal Magistrates Court of Australia on 22 July 2005 in which the grounds for the application were specified as follows: '1. The RRT failed to give me an opportunity to comment on adverse material as I had informed the RRT through my migration agent that an assessment on the material to be done and that I have no other material to present to the RRT. The RRT therefore erred in law in making a decision on the available information without giving me the opportunity to comment. Such is a breach of natural justice and fairness. 2. I rely also on information given to the Minister which I would have relied on and given to the Tribunal if I had been asked to do so. 3. I ask the Court to hear this matter even though it does not fall within 28 days because I have written to the Honourable Minister and asked for intervention and as my request was denied I had no other option but to lodge this application with the Federal Magistrates Court.' 16 The last two grounds seek to invoke material which was the subject of written communication from the appellant to the then Minister in letters dated 15 March 2004, 14 January 2005 and 19 February 2005, that is to say long after the Tribunal had decided the application for review adversely to the appellant. 17 The Tribunal's decision was made on 23 January 2004 and notice of it was provided to the appellant under cover of a letter from the Tribunal dated 18 February 2004. The Tribunal member was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant the appellant a protection visa. 18 In the Findings and Reasons section of the Tribunal's decision, the Tribunal member recorded, amongst other things, the following: 'The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. … A decision-maker is not required to make the applicant's case for him … Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. …' 19 The Tribunal member proceeded to record some 11 matters, prefaced by words to the effect, 'The applicant does not say' or 'He does not explain', which plainly were of concern to the Tribunal member in considering the Application for Review when the only material before the Tribunal member was the Application for Review itself and the original Application to which reference had been made in the Application for Review. 20 Any shortcomings in the advice proffered to the appellant by his migration agent cannot now be relied upon by the appellant to found a case of jurisdictional error on the part of the Tribunal. Apart from other considerations, no evidence was advanced by the appellant before the learned Federal Magistrate with a view to establishing that his non-attendance before the Tribunal had been the product of any wrongful conduct on the part of his migration agent. 21 Whilst at common law judgments obtained by fraud in adversarial proceedings will be set aside, the relevant fraud which must be established is a fraud upon the Court, not a fraud upon a party to the proceedings before the Court in which the party having the benefit of the judgment has had no involvement. Any fraud must be directly material to the judgment. No conduct on the part of the migration agent could relevantly affect the decision of the Tribunal in the circumstances of this case. 22 The appellant was aware of the Tribunal's invitation to attend a hearing before it and he elected not to attend. No jurisdictional error on the part of the Tribunal has been established. Accordingly, the appeal should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham Associate: Dated: 28 February 2007 The Appellant appeared in person. Counsel for the First Respondent: Ms S Kaur-Bains Solicitor for the First Respondent: Blake Dawson Waldron The Second Respondent did not appear. Date of Hearing: 19 February 2007 Date of Judgment: 19 February 2007