S1415 of 2003 v Minister for Immigration
[2006] FMCA 354
•3 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1415 OF 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 354 |
| MIGRATION – Review of decision for RRT – where application for an adjournment rejected – whether the Tribunal made the decision in bad faith – whether the Tribunal deprived the applicant of natural justice – whether the Tribunal properly considered all elements of the applicant’s claims. |
| Migration Act 1958 (Cth), s.424A |
| SPBS v Minister for Immigration [2002] FCAFC 361 Dranichnikov v Minister for Immigration [2003] 197 ALR 389 SZATG v Minister for Immigration [2004] FCA 1595 |
| Applicant: | APPLICANT S1415 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG 759 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 March 2006 |
| Date of Last Submission: | 3 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 759 of 2004
| APPLICANT S1415 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on
17 September 1996. On 15 October 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 7 July 1997 a delegate of the Minister refused to grant a protection visa and on 8 August 1997 the applicant sought review of that decision. The Tribunal held a hearing which the applicant attended and on 1 May 1998 affirmed the decision not to grant a protection visa.
The applicant filed his original application in this court on 17 March 2004. His case was given a directions hearing before the registrar on 23 July 2005. The applicant was given legal assistance through the Minister's Scheme, was seen by a barrister on 21 September 2004 and was provided with written advice on the 22nd. The applicant was ordered to provide an amended application giving complete particulars of each ground of review being relied upon by 21 September 2004.
A further directions hearing was held on 28 January 2005. On 24 January 2005 the applicant had filed an amended application which gave 14 grounds of review. Grounds 9, 10 and 11 are not grounds of review. Grounds 12 and 13 relate to obligations under s.424A Migration Act 1958 (Cth) (“the Act”) which had not come into force at the time of the review.
On 28 January 2005 this case was set down for hearing at 10.15 am on 3 April. The applicant was in attendance. For reasons which are not clear the hearing date went into the court system as 3 March. The respondent appears to have been told about this hearing date but there is no evidence that the applicant was. The applicant was served with a copy of the respondent's written submissions yesterday. The letter which accompanied those written submissions told him of the hearing today. The applicant sought an adjournment. He told me that he was expecting the hearing next month and that he proposed to seek advice on the respondent's written submissions. I reminded him that this was his case to fight and that under the orders of the court he was due to produce his written submissions before the respondent. Mr Lloyd agreed that he would accept from the applicant oral submissions and would be able to deal with those.
I declined to give the applicant an adjournment. I took into account the very long delay that had already occurred between the filing of the application and the hearing today. I took into account the very pro forma style grounds of application and amended application. I took into account the fact that paragraph 11 of the amend application says, "I will provide more details later", but no details have been provided. I took into account my reading of the green book which led me to the view that the Tribunal had not fallen into jurisdictional error in the way in which it had decided the applicant's case and that there was therefore a very small possibility of any advantage to the applicant by consulting with anyone, other than the advantage of delay. I took into account the fact that this court is inundated with migration matters and unless I moved some other applicant's case, which would be unfair to that person, I might not be able to accommodate this applicant for some months.
The applicant had two grounds upon which he claimed a well-founded fear of persecution. Firstly, he had become involved in State politics in the interests of the ADMK. He had some responsibility at his local branch. Through that position he became associated with some ADMK members of the State Legislature. He told the Tribunal that he had become involved in what would appear to be illegal foreign currency transactions on behalf of these legislators. The applicant claimed that he did this for approximately three years between March 1993 and May 1996. Towards the end of that period he began to realise that he was "playing with fire", some of the ADMK MPs were arrested after a change of government in Tamil Nadu. The applicant believed that he was at risk as a result of this activity.
The applicant also claimed that he feared a recent increase in Hindu fanaticism in India because he was engaged in providing social services to the Muslim community to which he belonged. He appeared to be a person to whom members of his community came for assistance when this type of communal violence was threatened. Apart from one attack in 1995 about which he took no action he was not able to tell the Tribunal of other incidents in which he was personally the subject of inter-communal persecution.
The Tribunal in its findings and reasons indicated that whilst it doubted the applicant's credibility it was prepared to accept what he had said at its face value. In regard to the foreign exchange activities the Tribunal found at CB 55:
“If the applicant were to be prosecuted in relation to his foreign exchange dealings he would be being prosecuted because he acted in contravention of a generally applicable law. He would not be being prosecuted because of his political opinion.”
In regard to the applicant's second major fear in relation to the tensions between Hindus and Muslims the Tribunal said at CB 55:
“The applicant, however, has only been able to point to one particular incident in which he suffered harm. The incident occurred during a period of general tension between Moslems and Hindus. It was an isolated incident which never reoccurred. There is no evidence before the Tribunal that the incident in which the applicant was involved was part of a course of systematic conduct aimed at him as a member of the Moslem community or for any other Convention reason.”
The Tribunal then drew upon independent country information and its own knowledge to note that the Indian Government generally stepped in promptly to quell any violence which erupts between the two communities. Finally the Tribunal found at CB 55-56:
There is no evidence before the Tribunal to suggest that the Moslem community in Tamil Nadu has been systematically harassed to such a degree that the word "persecution" is apt to describe the violence which occurs from time to time between the Moslems and Hindus.
The applicant's grounds of application are as follows:
1. The Tribunal made his decision in bad faith.
In SPBS v Minister for Immigration [2002] FCAFC 361 the Full Bench said at [43-44]:
An allegation of bad faith is a serious matter involving personal fault on the part of a decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial.
…
The fifth proposition is that the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration [2002] FCA 547 per Mansfield J at [35] and SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J ...
The applicant has failed to meet the strictures set out in the case I have just cited.
2. The Tribunal deprived me of natural justice.
The applicant has provided no particulars of this claim. At the hearing he said:
“They didn't interview me in the correct way. The interpreter was not good.”
The applicant has provided no evidence in the form of a transcript or even a tape to corroborate his claims concerning either of those two matters, or to indicate where he says the Tribunal went wrong. Insofar as these matters might go to his credibility, this is not an issue because the Tribunal accepted his statement. The applicant must make out his own case; Dranichnikov v Minister for Immigration [2003] 197 ALR 389; SZATG v Minister for Immigration [2004] FCA 1595.
3. The Tribunal denied the evidentiary proof of my claim.
I have long found this phrase, which appears all too frequently in applications before this court, confusing. I think it might mean that the Tribunal decided the case against the evidence. To raise this matter would appear to me to be raising impermissible merits review. It is up to the Tribunal to decide which evidence it accepts and which it does not.
4. The Tribunal's decision did not reflect the material facts of my claim.
I cannot accept this. The applicant made two claims; they were both dealt with by the Tribunal.
5. The Tribunal has given a decision which was preset in the back of its mind.
This is another way of alleging bias. I have already dealt with this allegation.
6.The Tribunal mixed up many facts with this decision which affected the decision.
Unless I know what facts are alleged to have been mixed up, I cannot make a determination about this allegation. The applicant has had one and a half years or more to give the court some indication of what he means by this particular ground and has failed to do so.
7. The Tribunal concentrated in particular fact while ignored many other facts in this condition.
If I had any inkling of what the particular fact was that the Tribunal concentrated upon or what facts were ignored, I would be in a better position to deal with this complaint. It does have the ring of a merits review application. In fairness to the Tribunal I think I should make it clear that, so far as I can see from its decision, it dealt with all the facts raised by the applicant.
8. The Tribunal made up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim.
What the Tribunal did not believe was that the claim advanced by the applicant, which it accepted, constituted Convention based persecution. It is the Tribunal's responsibility to satisfy itself that there is a Convention based claim and, unless it made an error of law in regard to what it considered to be such a claim, this court would have no jurisdiction to substitute its views of the facts for those of the Tribunal.
Paragraphs 9, 10 and 11 of the grounds of application are not grounds. Ground 12 refers to an obligation under s.424A of the Act which had not come into force. Paragraph 13 appears to me to be another way of putting what has been put in paragraph 12, or possibly relying purely on an allegation of denial of procedural fairness. It argues that the Tribunal failed to provide the applicant with particulars of information referred to at CB 55, which I have discussed earlier in these reasons. The difficulty which I would have with this is that the applicant has not established that fact.
I do not know what was discussed with the applicant and what was not, because I do not have a copy of the transcript or the tape. It may also be that the facts established by the independent country information referred to at CB 55 are not an indicia of the Tribunal's decision. That indicia seems to me to be the sentence already quoted, that there was no evidence before the Tribunal to suggest that the Muslim community in Tamil Nadu have been systematically harassed to such a degree that the word persecution is apt to describe the violence which occurs from time to time. It would be for the applicant to provide the Tribunal with that type of information if he was going to make such an assertion.
As Mr Lloyd states in his helpful written submissions:
The only other relevant country information concerned the willingness of the Indian authorities to protect Moslems. This was a matter discussed by the delegate in his reasons at CB53.5. The Applicant's adviser noted that information in the application for review to the Tribunal and made submissions in relation to it [CB36.5].
I accept that no denial of procedural fairness has occurred. In the circumstances I am unable to find any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it made its decision in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 13 March 2006
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