A97 v Minister for Immigration and Ors (No.2) - [2004] FMCA 178

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A97 v MINISTER FOR IMMIGRATION & ORS (No.2)

[2004] FMCA 178

MIGRATION – Application for review of decision of RRT – where applicant did not attend hearing – where Tribunal found that its inability to question the applicant led to its not being satisfied that he had a well founded fear of persecution.

B41 of 2003 [2004] FCA 30

Applicant:

APPLICANT A97 OF 2002

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

ERAINE GROTTE, REFUGEE REVIEW TRIBUNAL

Third Respondent:

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

File No:

AZ 48 of 2004

Delivered on:

16 March 2004

Delivered at:

Adelaide

Hearing date:

16 March 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms C White

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500 pursuant to Part 21 Rule 21.02 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 48 of 2004

APPLICANT A97 OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

ERAINE GROTTE, REFUGEE REVIEW TRIBUNAL

Second Respondent

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He is a Sikh from the Punjab. He arrived in Australia on 26 April 1998, holding a student visa. On 4 August 2000, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 30 August 2000 a delegate of the minister refused to grant the visa and on 8 September 2000 the applicant applied for review of that decision from the Refugee Review Tribunal.
On 31 August 2001, the Tribunal wrote to the applicant, care of his migration agent who had authority from him to receive correspondence [CB 42], advising the applicant that it had looked at all the material relating to his application but was not prepared to make a favourable decision on the information alone. The letter invited the applicant to a hearing on 11 October 2001 [CB 43].
On 3 October 2001 a response to hearing invitation was faxed from the migration agent to the Tribunal [CB 45-46]. The response indicated that the applicant did not wish to come to a hearing. The response form was signed by the applicant and today the applicant has told me that it is his signature. However, he appears not to recall, or possibly even to deny, that he put the tick in the form, or was aware of it. What he does not deny, because he asserts it, was that he was told "by everyone" not to attend the hearing because he might be arrested if he went there.
The applicant claimed to have a well-founded fear of persecution for the convention reasons of political opinion. In a statement by way of statutory declaration [CB 21-23] he said that he was a political activist and actively participated in the student movement in the Punjab which was led by Akali Dal. He claimed that he had been targeted by the state government and the central government and that he had led a protest, on a date which is not indicated, at which the police arrested him, assaulted him and then logged a false and fabricated case against himself and other party activists.
He stated that he became wanted by the police and that his life was in certain danger in India. Because of this he determined to leave the country and applied for a student visa which was approved on 9 April 1998. Once he had obtained the visa he managed to escape from India on 25 April 1998. In a form C completed by the applicant and found at [CB 7 –13], the applicant indicated, in response to questions on [CB 12] that he left the country illegally with the assistance of an agent and that his passport had also been arranged by the agent.
In its decision the Tribunal noted that the applicant had not sought to appear. The Tribunal gives an interesting and thorough resume of independent evidence describing the situation of Sikhs in the Punjab. At [CB 58] it states:
"From about 1992 the situation in the Punjab began to improve. Police road blocks and constant military presence disappeared. The Sikh militant movement was no longer active in the Punjab. There is no obvious support for the militants and the people want peace. The Australian Department of Foreign Affairs and Trade has advised that there has been a wholesale political resolution of the separatist problem in the Punjab. In advice following the assassination of Beant Singh, it said that since the height of the troubles in the Punjab there had been a quantum leap in officials’ awareness of human rights issues and in their recognition of the need to eliminate practices which breach India’s human rights obligations.”
The Tribunal goes on to quote further from independent country information to the effect that:
"One would have to engage in violent anti-state acts to be at risk of persecution.”
The Tribunal's findings and reasons commence with the following paragraph at [CB 59], which I believe fairly sums up the law which applied to it at the time:
"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: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA) (1997) 74 FCR 275 at 288) the relevant facts of the individual case will have to be supplied by the applicant himself 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: Prasad v MIEA [1985] 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.”
The Tribunal pointed out that the allegations made by the applicant were broad and lacking in detail. It stated that it was unable to be satisfied as to the substance of the claims and it wished to question the applicant further about them. The Tribunal pointed out the inconsistency between the fact that the applicant had said that his agent had assisted him with the obtaining of his passport when the passport had been obtained in 1996 and he had not travelled to Australia until 1998. The Tribunal wished to question him about that matter.
The Tribunal noted that the applicant had remained in Australia on a student visa for two years before he made application for protection and felt that that appeared to be inconsistent with a genuine fear of persecution. The Tribunal noted that the applicant had been given an opportunity to appear before the Tribunal, knowing full well that on the basis of the information that was then before it, the Tribunal was not disposed to make a favourable decision. Notwithstanding this, the applicant did not attend. Finally, the Tribunal noted the independent country information which indicated that the situation for Sikhs in the Punjab had now improved considerably.
The Tribunal determined that on the evidence before it, it could not be satisfied that the applicant had a well-founded fear of persecution for reason of his race, religion, actual or imputed political opinion or any other convention reason, should he return to India now or in the foreseeable future.
The applicant determined to seek review of the decision of the Tribunal. The proceedings were complex to say the least. They appear to have commenced with an application to the High Court in its original jurisdiction. That matter was then referred to the Federal Court of Australia, where directions were made. Those directions were not complied with and the proceedings were struck out. The matter came before Lander J and his Honour reinstated the proceedings and made certain orders against the applicant's then adviser. The order for reinstatement included an order for the applicant to comply with the original orders for directions, the most important of which was for him to file an amended statement and some particulars of why he believed the Tribunal had erred in law. That was not done. Further directions were held on 19 February 2004 and the matter was listed for hearing before me today. I have already given a judgment indicating why I declined the applicant's request for an adjournment.
I accept that the applicant was under the disadvantage, shared with many persons who appear in these matters, of not having legal representation. I asked him to tell me why he believed that the decision of the Tribunal was wrong. It seems to me that there were two main matters. The first related to his non‑attendance before the Tribunal. To the extent that his complaint was that he had been wrongly advised by his migration agent, or even that his migration agent had acted without his authority, it would seem that this occurrence, if that is what it was, would not assist him.
In B41 of 2003 [2004] FCA 30 Dowsett J dealt with a very similar situation. In [25] His Honour said:
“The prosecutor did not point to any authority in support of his assertion that a party who, acting on advice does not appear in the Tribunal, may later complain that such action led to his not being heard. I have been unable to find any such support. Al-Mehdawi and the two Victorian decisions are to the contrary. The Chief Justice’s observation in Hot Holdings and the apparent approval by the Full Court in Barrett of the extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless the outcome is consistent with general principles and good policy. In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness.”
The other matters raised by the applicant appear to me to be seeking a merits review of the Tribunal's decision. The applicant tells me, in all sincerity, that he is frightened to return to India where he believes that he will be killed. But the Tribunal has found that that fear is not genuine, either subjectively or objectively. The Tribunal has based that finding upon facts available to it. It found the lack of subjective fear arose out of the time which the applicant took before making an application for a protection visa. It made the objective finding on the basis of the country information concerning the situation of Sikhs in the Punjab. It noted that in respect of both matters it was unable to question the applicant because of his non-attendance at the hearing.
The Tribunal made these findings in the knowledge of the law which it had set out at [CB 59] and which I have set out in these reasons. I am satisfied that the Tribunal did not misunderstand the law and that the conclusions to which it came were capable of being drawn from the information before it and consistent with those cases which it cited.
In all of the circumstances there are no matters upon which I can see that the applicant has grounds for review of the Tribunal's decision.

I must dismiss this application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: