NBDT v Minister for Immigration
[2006] FMCA 260
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBDT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 260 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 424A |
| Minister for Immigration v SGLB [2004] HCA 32 Re Rudduck and Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437 SJSB v Minister for Immigration [2004] FCAFC 215 SZBCS v Minister for Immigration [2005] FMCA 25 |
First Applicant: Second Applicant: | NBDT NBDU |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2112 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 23 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Mr A Carter Sparke Helmore |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the application.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2112 of 2004
| NBDT |
First Applicant
NBDU
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 17 March 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. I ordered that the RRT be joined as the second respondent to the application. There are two applicants, a husband and a wife. They are from India. The relevant claims were made by the applicant husband. In these reasons references to “the applicant” are references to him. Relevant background facts are set out in the Minister's written submissions. I adopt as background for the purposes of this judgment paragraphs 2-5 of those written submissions:
The applicants, citizens of India, are husband and wife, but only the husband (“the applicant”) made Convention related claims. The applicant sought a protection visa on the ground that he had a well founded fear of persecution as a result of his political opinion. The applicant is a Hindu and was an active member of the Bharatiya Janata Party (BJP).
The applicant’s problems began in March 2002 when his workshop was destroyed and he was severely beaten during communal rioting which erupted after a Muslim extremist attack on Hindus. This incident was reported to the police but they took no action and the applicant continued to be threatened. In May 2003, Muslim extremists entered the applicant’s home, attacked him and his family and ordered them to leave (court book, pages 17-20).
The RRT:
i)found that the applicant’s claims were “vague and very general” and amounted to “nothing more than unsupported allegations” (court book, page 61.5). In particular, the RRT pointed to his failure to specify which particular Muslim extremists he feared or provide any detail of his involvement in the BJP or of the threats he had received (court book, pages 61.7-62.7).
ii)found that the applicant’s claim to fear for his life was “implausible” given he had decided to return home after a trip to Malaysia (court book, page 62.5).
iii)accepted independent country information further undermined the applicant’s claims as it indicated that Muslims were often the victims in communal rioting; that the police extend protection to Hindus; and that the BJP was in power in the applicant’s state (court book, pages 62.9-63.1).
The RRT concluded that it could not be satisfied of the veracity of the applicant’s claims on the information before it, particularly as the applicants had declined the invitation to hearing. Accordingly, the RRT was unable to be satisfied that the applicants were persons to whom Australia owed protection (court book, page 63.3).
As noted above, the applicants declined an opportunity to attend a hearing before the RRT. On 19 January 2004 the RRT wrote to the applicant at the address of his authorised recipient, and also to him at his residential address. The hearing invitation appears on pages 48 and 49 of the court book. The letter advised that the RRT had considered all of the material before it in relation to the application but was unable to make a decision in favour of the applicants on that information alone.
On 13 February 2003 (court book, page 50) the applicants' authorised recipient or migration agent responded to the hearing invitation on behalf of the applicants declining the hearing invitation. The following day (court book, page 51) the applicant responded personally also declining the hearing invitation. In the circumstances, it is not surprising that the RRT was unable to make a decision in the applicants’ favour.
The applicants rely upon an amended application filed on 20 October 2004 and a document headed “Contention of fact and law” filed on
14 July 2004. I accepted the latter as written submissions.
The Minister deals with the grounds advanced in the amended application in paragraphs 12-15 of the written submissions. I agree with and adopt for the purposes of this judgment those paragraphs of the Minister's written submissions:
The amended application filed on 20 October 2004 pleads various grounds of review. First, the applicant alleges that the RRT denied the applicant procedural fairness by failing to investigate the applicant’s claims, by not considering relevant country information, and by failing to put adverse material to him for comment.
These grounds cannot be sustained on the materials. It is for the applicant to advance whatever evidence or argument he wishes to advance, and for the RRT to decide whether his claim has been made out.[1] No jurisdictional error is revealed because the facts that were put forward by the applicant did not cause the RRT to be satisfied as to the applicable criteria under s.65 of the Migration Act 1958 (Cth) (“the Migration Act”).[2] The RRT was under no legal obligation to exercise its power to obtain further information.[3]
Secondly, the applicant claims that the RRT failed to comply with s.424A of the Act, by not providing him with country information that was not “just about a class of person of which the applicant was a member”. The applicant has not identified any specific country information in this regard, and none is evident from the RRT’s decision.
“Particulars” 3-9 of the amended application are vague and unparticularised, and are meaningless in the absence of specific connection to the RRT’s decision.
[1] Re Ruddock and Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437, per Gummow and Heydon JJ at [57].
[2] SJSB v Minister for Immigration [2004] FCAFC 215; SZBCS v Minister for Immigration [2005] FMCA 25.
[3] Minister for Immigrationv SGLB [2004] HCA 32 at [43].
The applicants declined to make oral submissions in support of their application.
As the applicants are self-represented I have myself considered whether any jurisdictional error is apparent on the face of the record. I have found none. The RRT decision is relatively straightforward. Simply put, the presiding member was concerned that there was insufficient clarity in the material advanced by the applicant to support the grant of the visa sought. The presiding member was also concerned that the applicant’s claims did not accord with the available country information. At page 63 of the court book the presiding member noted that the applicant had declined an invitation to attend a tribunal hearing where he would have had the opportunity to provide oral arguments and explanations for his claims and to respond to the independent evidence. Without the opportunity to take evidence from the applicant a number of significant questions raised by the presiding member remained unanswered and the applicant’s claims remained nothing more than unsupported allegations.
Having properly invited the applicants to a hearing, the RRT was entitled to proceed in their absence. I see no jurisdictional error in the decision of the RRT or in relation to the procedures of the RRT preceding that decision.
I find that the RRT decision is a privative clause decision. Accordingly, I dismiss the application.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $3,500. I agree that that is an appropriate award on a party and party basis. The applicants did not wish to be heard on costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 1 March 2006
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