SZLQV v Minister for Immigration and Citizenship [2008] FCA 795

FEDERAL COURT OF AUSTRALIA

SZLQV v Minister for Immigration and Citizenship [2008] FCA 795

SZLQV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 290 of 2008

DOWSETT J

13 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 290 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLQV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 13 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed; and 2. the appellant pay the first respondent's costs of the appeal, fixed at $2,100. 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 290 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLQV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 13 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who claims to be a citizen of Indonesia, arrived in Australia on 1 May 2007. On 22 May 2007 he applied for a protection visa. The application was unsuccessful. The appellant applied to the Refugee Review Tribunal (the "Tribunal") for a review of that decision. On 29 August 2007, the Tribunal advised him that on the material which it then possessed, it could not make a decision in his favour. It invited him to a hearing to be held on 28 September 2007. The appellant did not attend on 28 September 2007, nor did he contact the Tribunal at that time, or at any time prior to the Tribunal's decision being delivered. On 4 October 2007, he was advised that the decision would be delivered on 23 October 2007. The Tribunal dismissed his application. The appellant then applied to the Federal Magistrates Court for review of that decision, which application was also unsuccessful. He now appeals to this Court from the decision of the federal magistrate. The appellant, at some stage, asserted that he was ill on the date of the hearing in the Tribunal. However, as I have said, it seems that he made no attempt to contact the Tribunal at any time prior to the delivery of its decision some weeks after the hearing date. 2 The basis of his claim to refugee status was summarised by the Tribunal as follows: In his application for a protection visa, the applicant states that he was born in Indonesia in 1972, that he is ethnic Chinese and a Buddhist. He indicates that he has never married and was a retailer before he came to Australia. He states that he arrived in Australia on 1 May 2007 using a passport issued in Jakarta Utara in August 2006. He indicates that he left his country legally and had no difficulties obtaining his travel documents. The applicant states that he left Indonesia because Muslim extremists harmed him in his country. They caused him trouble, stole from his restaurant and almost destroyed his restaurant. He explained that he lived in a small town in Jakarta and ran a Chinese restaurant in an area where there were a lot of Muslims. Muslim extremists were very unhappy and angry with him because a lot of Chinese food that he cooked contained pork. He said that he called the police about this trouble and although the police tried to stop the Muslims, they could not do so. He states that if he returns to his country, Muslim extremists will harm and hurt him and may even kill him. He states that if he returns to his country Muslim extremists will want revenge because his restaurant sold food with pork and he reported them to the police. The authorities in his country have no power to protect him. He arranged his travel documents so that he could flee to Australia and seek protection. 3 The Tribunal, in its reasons, directed itself that it had to determine whether the applicant had a genuine fear founded upon a real chance of persecution for a Convention reason if he were to return to his country. It then observed: Without more evidence from or on behalf of the applicant, and the evidence presently before it, the Tribunal cannot be satisfied that the applicant left his country for the reasons that he claims; that he was/will be, threatened/harmed/harassed in his country as he claims for the reasons that he claims; and/or that he cannot or will not return to China because he fears harm there, now or in the reasonably foreseeable future. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, if he returns to his country. 4 The Tribunal also observed: 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary, to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. 5 It is clear that the Tribunal's decision was based upon its not being satisfied, on the material before it, that the appellant had the relevant well-founded fear of persecution for a Convention reason. Given the nature of the claims set out in his application, and his failure to attend to enable the Tribunal to explore the matter with him, one doubts whether the Tribunal could possibly have come to any other decision. 6 In the passage which I have quoted above, the Tribunal spoke of the appellant's return to China. However it is quite clear that in examining such evidence of his claims as it had, it understood that he was from Indonesia and that it was addressing his fear of persecution in that country. The reference to China is a mere slip and is of no significance for reasons akin to those set out by the High Court in Fitzgerald v Masters (1956) 95 CLR 420 at 426-427. 7 Notwithstanding the inevitability of the outcome in the case, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. The grounds were: 1. The decision involved an error of law in that: Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed. 2. The decision involved an important exercise of the power conferred by the Migration Act and Regulations. 8 In the orders sought, the appellant asserted that the Tribunal had "made the decision which is biased." Although this is not specified as a ground, it may be that it was intended to be such. The federal magistrate examined the matter with care. His Honour was unable to find any error of law, either procedural or otherwise. That the matter was an important exercise of power is no ground for appeal. There was no evidence of bias. Indeed the appellant seems to have said that he meant only to suggest that he felt the decision was unfair. The magistrate dealt with the reference to China in much the same way as I have done. There was no error in the federal magistrate's approach to the matter. 9 Nonetheless, the appellant appealed. The grounds of appeal are: 1. There is no evidence of the other material to justify the making of the decision. 2. The Refugee Review Tribunal does not fully consider the danger I would face if I returned to Indonesia. 3. I believe that my fear of persecution is well-founded. 10 As was pointed out by counsel for the Minister, the Tribunal's decision was that there was insufficient evidence for it to make a decision in the appellant's favour. The first ground is therefore misconceived. The assertion that the Tribunal did not understand the danger which he would face may be correct but if so, it was because the appellant did not attend to assist it fully to appreciate such danger. The Tribunal was entitled, in his absence, to proceed pursuant to section 426A, and it did so. The appellant's assertion that his fear of persecution is well‑founded takes the matter no further. It was for the Tribunal to consider whether or not it was satisfied that he had such a fear and that it was well-founded. The appellant deprived himself of the opportunity to assist the Tribunal to reach a favourable conclusion from his point of view. In the circumstances, the appeal must be dismissed. 11 This morning, in another matter, I made comments concerning the fact that an application for a protection visa based on a brief paragraph and a few additional sentences had, in that case, led to the incurrence of substantial public expense by the Department, the Tribunal, the Federal Magistrates Court and this Court in prosecution of a claim which, as framed, was almost certain to fail. This case is very similar. The two cases are, in my view, examples of the way in which our very generous system for review of administrative decisions can be abused at great public expense. 12 There will be leave to read and file the affidavit of Bernadette Rayment, sworn 13 May 2008. I order the appellant to pay the first respondent's costs fixed at $2,100. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.