NAFR v Minister for Immigration - [2003] FMCA 528

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFR v MINISTER FOR IMMIGRATION

[2003] FMCA 528

MIGRATION – Application for review of Refugee Review Tribunal decision – non-attendance at Tribunal hearing – no jurisdictional error.

NAAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 55
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

NAFR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ319 of 2003

Delivered on:

7 October 2003

Delivered at:

Sydney

Hearing Date:

7 October 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent's costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ319 of 2003

NAFR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 21 November 2002, refusing to grant the applicant a protection visa. The applicant claimed to fear persecution by reason of her membership of the MIM political party in India and because of her membership of a low Hindu cast. These grounds were set out in her original application. The delegate of the respondent wrote to the applicant inviting her to comment on adverse country information in relation to such claims. No comment was received by the Department in respect of such claims. Her visa application was refused on 24 April 2002.
The applicant sought review of the decision of the delegate on 9 May 2002. On 27 September 2002 the Tribunal wrote to the applicant and to her migration agent inviting her to a hearing on 23 October 2002. The invitation stated that the Tribunal had considered the papers relating to her application but was unable to make a favourable decision on that information alone.
On 17 October 2002 the applicant's migration agent requested that the hearing be postponed for six to eight weeks. On 18 October 2002, the Tribunal contacted the agent and advised that the request was declined and that the hearing would proceed on 23 October 2002. The migration agent was requested to send the response to hearing form as soon as possible. On 21 October 2002 the a response to hearing form was received by the Tribunal. It stated that the applicant would attend the hearing and required a Hindi interpreter. The migration agent again requested a postponement. According to the Tribunal reasons for decision, on 21 October 2002 the Tribunal informed him that the request for a postponement was declined, that the hearing would go ahead as scheduled, and, importantly, that if it was necessary for the agent to provide additional documents or submissions, that would be discussed at the hearing and, if necessary, additional time would be provided.
However, on 22 October 2002 the applicant's migration agent advised the Tribunal in writing that, ‘due to unavoidable circumstances’ the applicant would not be able to attend the hearing on the scheduled date of 23 October 2002 and requested the Tribunal to make a decision on the existing documents in the file, stating that they would be submitting more documents within the next six to eight weeks.
The Tribunal attempted to contact the migration agent. It advised his office that if he wished to make further written submissions he should do so by 25 October 2002. No submissions were received by the Tribunal. The decision was handed down on 21 November 2002.
The Tribunal considered the applicant's claims to be lacking in detail. It did not accept the factual claims that were made by her. The Tribunal found that the applicant’s claims lacked specific detail, were vague and generalised and appeared to be generic. It concluded that it was unable to establish the relevant facts of the matter and was unable to accept that the applicant’s claims had any credibility and veracity. It noted the lack of detail in the claims based on political activity and the absence of independent information to suggest that members of the MIM were persecuted in India. The Tribunal was not satisfied of the credibility or veracity the applicant’s claims of persecution because she was a member of the Hindu lower caste. It expressed serious doubts as to whether or not the applicant was in fact a member of such a caste based on her education and employment.
It was not satisfied on the evidence before it that the applicant was the subject of persecution for her political activities in India or ethnicity or that there was a real chance of her being the subject of persecution if she returned to India. The Tribunal gave reasons for its conclusion based on the absence of specific detail and generality and vagueness of the claims as well as the applicant’s ability to travel from India without difficulties and incidents.
In the application for judicial review it was claimed that the Tribunal decision was incorrect as all the material facts on the files had not been considered. No particular facts were identified in the application or accompanying affidavit. The applicant did not file written submissions. In the hearing today she claimed that the Tribunal had not accepted that she was from a low caste and that if the Tribunal had asked her for evidence, she could have provided evidence to support her claim. She did not point to any particular evidence that she had provided to the Tribunal which the Tribunal had not considered.
I have considered the applicant's claims and also, as she is unrepresented, whether the material before me reveals any jurisdictional error. In so far as the Tribunal decision is based on credibility, credibility is a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407) and in this instance the Tribunal gave reasons for its conclusions which were open to it on the material before it. There is no substance in the applicant's claim that the material facts on the file had not been considered. There is no suggestion that she provided any information to the respondent's delegate in relation to the original decision such as might have been before the Tribunal for consideration. On the material before me, there is nothing to suggest that the applicant's claims, as put in her protection visa application and her application for review to the Tribunal were not considered by the Tribunal.
The applicant did not attend the Tribunal hearing. In the hearing today, she stated that she had been unwell and that she had provided a medical certificate to the Tribunal at the time of the hearing. This is contrary to the material before me. There is nothing in the letters from her migration agent, in particular the letter of 22 October 2002, to suggest that this was the case or that ill health was the reason for her failure to attend the hearing. I am satisfied that she was given an opportunity to attend the hearing and to address the concerns of the Tribunal and to put the elements of her claim before the Tribunal. There is no error apparent in the Tribunal’s refusal to grant an adjournment of the hearing or to defer the making of the decision particularly as the Tribunal had foreshadowed considering any request for further time to provide documents or submissions at the hearing.
As to the applicant’s claim that if the Tribunal had asked her for evidence she could have provided further information, she had the opportunity to provide information in support of her claims from the time of her Tribunal application in May 2002 to the time of the decision in November 2002. She also had the opportunity to attend a hearing to provide such information. The Tribunal is not required to make the applicant’s case for her. In all the circumstances of this case, it has not been established that the Tribunal erred in the manner suggested by the applicant.
There is no lack of procedural fairness apparent on the material before me. The applicant was invited to and had the opportunity to attend a hearing. In so far as the applicant now claims that she was unwell, there is no evidence to support that claim. There is no breach of section 425 of the Act. Nor was there a failure by the Tribunal to consider any element of her claim or the material before it in the manner contended or in any other way.
As no jurisdictional error has been established the application should be dismissed. In light of this conclusion it is not necessary for me to address the submission made by Counsel for the respondent in relation to the jurisdiction of this court in cases where a jurisdictional error is found to exist (see NAAM v MIMIA (2003) FMCA 55).

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. It is appropriate that she meet the costs of the respondent in this instance. The respondent sought costs in the sum of $4,000. Bearing in mind the nature of this and other similar matters I consider that in this case an appropriate amount is $3,500. Accordingly, it is ordered that the applicant pay the respondent's costs set in the amount of $3,500 pursuant to 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 Barnes FM

Associate:

Date: 7 October 2003.