S1586 of 2003 v Minister for Immigration
[2004] FMCA 711
•7 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1586 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 711 |
| MIGRATION – Application to review decisions of delegate of the Respondent and of Refugee Review Tribunal – whether applicant was “misrepresented” in manner constituting jurisdictional error – whether Tribunal can “cure” defect in delegate’s decision – whether lack of procedural fairness. |
Migration Act 1958
Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | APPLICANT S1586 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1526 of 2004 |
| Delivered on: | 7 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 October 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1526 of 2004
| APPLICANT S1586 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review filed by the applicant on 24 May 2004. It was not apparent from the application whether the applicant sought review of a decision of a delegate of the Minister or a decision of the Refugee Review Tribunal (the Tribunal), or both. His application referred to a decision of the Tribunal given on 27 November 1992 and to a Departmental file number. However, there was no relevant decision by the Tribunal on that date. This lack of clarity was brought to the applicant’s attention by letter sent to him by the solicitor to the respondent on 26 July 2004. A copy was also sent to his adviser under the panel advice scheme. He did not respond and he has not filed written submissions.
However at the commencement of the hearing the applicant indicated that he wished to seek review of both the decision of the delegate of the respondent not to grant him a protection visa which was made on 20 November 1992 and also the decision of the Refugee Review Tribunal affirming that decision made on 1 March 1995. He was given leave to amend his application orally to encompass both of those decisions.
The background to these proceedings is that the applicant is a national of India who arrived in Australia on 16 June 1985. On 8 March 1992 he lodged an application for refugee status which, by operation of law, became an application for a protection visa. It was refused on 20 November 1992. The Department's file relating to the first protection visa application was destroyed on 26 September 2001, although a copy of the decision remains and was included in the bundle of relevant documents before the Court. The applicant sought review by the Refugee Review Tribunal and on 1 March 1995 the Tribunal affirmed the delegate's decision.
For the sake of completeness it is also relevant to note that on 23 August 1995 the applicant lodged another application for a protection visa. That application was refused by a delegate of the respondent on 12 March 1996 and that decision was affirmed by the Tribunal on 2 December 1996. The second protection visa application is not the subject of these proceedings.
Subsequently, on 18 September 2000, the applicant sought judicial review in the High Court of the first Tribunal decision as a member of the Lie class action. Pursuant to leave granted by the High Court he filed an independent application seeking orders in relation to the first Tribunal decision on 29 May 2003, which application was remitted instanter to the Federal Court.
The remitted application was dismissed by Emmett J on 20 February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289). His Honour ordered that the application for an order nisi be refused. He noted at [28] that an order refusing an order nisi is clearly an interlocutory order and would not found any bar or estoppel against appropriate relief if grounds were established. These proceedings were then commenced.
In the application the applicant complains generally that he was denied procedural fairness and natural justice. He contends that there was a failure to comply with section 418(3) of the Migration Act and a failure to comply with section 424(1) of the Migration Act. In oral submissions he was asked to elaborate on the precise nature of his claims in relation to both the delegate's decision and the Tribunal's decision. He complained generally that he had sought the release of documents from the Department under a Freedom of Information request and that he had not been given all the documents, although he was not able to explain the relevance of this claim other than that it had in some way hindered the preparation of his case. However the applicant also tendered to the Court a letter from the Refugee Review Tribunal dated 29 July 2004 responding to the Freedom of Information request received on 15 July 2004 seeking access to his files including documents referred to in Part B of the decision of the delegate. The letter records that those documents that were library materials were not documents for the purposes of the Freedom of Information Act and hence were not required to be released, but that the Tribunal was prepared to provide the other documents sought by the applicant and that it did so.
The delegate’s decision
In relation to the 1992 delegate’s decision the applicant complained that the file had been destroyed and he did not know what was in it and that the decision was not in his favour and that what he had said was misinterpreted (although he did not provide any details of the claimed misinterpretation). He contended that there was a denial of procedural fairness.
The delegate conducted an interview with the applicant. There is no evidence other than the delegate's record of decision in relation to that interview. No doubt that is partly attributable to fact that the file was destroyed in 2001. These proceedings were commenced after that time. The destruction of the file and the fact that it is now not available do not establish jurisdictional error. There is no evidence before the Court to establish that what the applicant said was misinterpreted.
The delegate refused the application on the basis that the Indian authorities had no ‘security interest’ in the applicant and that his alleged fear of them was not well-founded. He had no political membership of any relevant organisation, involvement or profile. There was no evidence of past persecution and the difficulties he claimed he would face on return to India were simply domestic issues and were not Convention-related. The delegate also found that internal relocation in India was a practical and viable option for the applicant to avoid any violence in the Punjab. It also found that Sikhs such as the applicant were able to return to India without difficulty and did not face persecution from the authorities in the Hindu community.
The applicant's complaints about the delegate's decision do not establish any jurisdictional error. The fact that the delegate did not believe the applicant is not such as to establish a jurisdictional error.
Moreover, as contended by the respondent, even if the first delegate's decision was affected by a jurisdictional error, it has been the subject of review by the Tribunal. As was held recently by the Full Court of the Federal Court in Zubair v MIMIA [2004] FCAFC 248, albeit in the context of considering a cancellation decision and a subsequent review by the Migration Review Tribunal (MRT), the review process under the Migration Act 1958 is a full merits review. The same may be said of the Refugee Review Tribunal. In that case the Court concluded that the MRT had the power to review the delegate's decision and was in consequence able to cure a defect in the delegate's decision (such defect being a failure to comply with mandatory procedural requirements which it was accepted meant that the delegate's decision was not a valid decision). (See Zubair at [19] and [27] – [32]).
It was contended that similar reasoning should apply in this case on the basis that the decision had been the subject of a full merits review by the Refugee Review Tribunal. There is much strength in this argument. I have not, however, had the benefit of legal argument on behalf of the applicant in relation to this issue as he is self-represented. I do not consider that it is necessary for me to determine, in this instance, the precise scope of the decision of the Full Court in Zubair. If, contrary to my view, there was a jurisdictional error in the delegate’s decision and if the Tribunal decision did not cure such a defect, I am satisfied that relief should in any event be refused as a matter of discretion because the delegate's decision has been the subject of full merits review by the Tribunal and also because of the unexplained delay in bringing the present judicial review application in relation to the initial delegate's decision. The delegate's decision was made in 1992. This application was brought in 2002. No explanation for this delay has been proffered. (I note that the respondent does not rely on delay in relation to the application for review of the Tribunal decision, consistent with the assurances given to the Federal Court as outlined at [29] in Applicant S1174 of 2002.)
Accordingly, then, I am not satisfied that there is any jurisdictional error in the delegate's decision. If I am wrong, I would not grant relief for the reasons that I have indicated.
The Tribunal decision
The applicant also seeks review of the decision of the Tribunal made on 1 March 1995. This decision reviewed the delegate's decision discussed above. When asked specifically what he complained of in relation to the 1995 Tribunal decision, the applicant indicated that he was asked certain things and they were misinterpreted and misunderstood and that on that basis the wrong decision was made.
The Tribunal reasons for decision record that the applicant was offered the opportunity to attend a hearing to give oral evidence in relation to his claims. However he declined the offer and elected instead to have the decision made on the papers. The applicant takes issue with this and states that whenever he was advised of a hearing by his advisers he attended the hearing. However there is no material before the Court to support his claim in that respect. There is no transcript of any hearing. There are the clear words of the Tribunal reasons for decision to the contrary which, on the material before me, I accept. It may be that the applicant is referring to what he said in his interview with the delegate prior to that Tribunal decision or perhaps in a subsequent proceeding. His complaint does not establish jurisdictional error.
The applicant contended that the Tribunal based its decision on the decision of the delegate and also that he was not given all of the documents. His general complaint about the failure of the Tribunal to provide him with documents is not consistent with the letter of 29 July 2004 from the Tribunal. The Tribunal did provide documents which were required to be released under the Freedom of Information Act according to its letter (the other documents being library materials). It became apparent that he sought to raise a claim of a lack of procedural fairness on the basis considered by the High Court in the decision of Muin v Refugee Review Tribunal;Liev Refugee Review Tribunal (2002) 190 ALR 601.
He makes no specific claims about any lack of procedural fairness other than the general claim that his situation is on all fours with Muin and Lie, a copy of which he drew to the Court's attention by way of a handwritten document containing an extract from the start of the judgment of Gleeson CJ which merely recites the facts. There is nothing in the material before me to establish a claim on the basis which succeeded in the High Court in Muin. The applicant in that case succeeded largely on the basis of agreed facts. That is not the situation here. The factual basis for a claim of a lack of procedural fairness has not been established. It is notable that there is nothing else before the Court in relation to this claim other than the applicant's bare assertions. Similarly in Applicant S1174 of 2002 Emmett J concluded that there was no arguable case and that an order should be made refusing an order nisi where there was nothing more than the assertion of a lack of procedural fairness.
There is nothing in the material before me to suggest that there was any lack of procedural fairness, either in the sense considered in Muin or otherwise. On the material before me I am satisfied that the applicant had the opportunity to attend a hearing to give oral evidence and address issues of concern to the Tribunal. The Tribunal reasons for decision record that he elected not to do so. The Tribunal, nonetheless, considered the applicant's claims. It found that any mistreatment of Sikhs might be by reason of imputed political opinion of a particular applicant, but would not be by reason of race or religion for reasons which it gave. It then concluded that this particular applicant had no political profile and that the authorities were extremely unlikely to have any Convention-related interest in him. The Tribunal had regard to a number of factors in leading it to this conclusion, in particular the absence of any profile for the applicant when he was in India, the passage of a decade (as at 1995) since his last visit to India, the then recent improvement in the situation of Sikhs in the Punjab, the applicant's renewal of his passport in 1992 indicating that the authorities had no particular interest in him and independent information about the growing attention to human rights matters in India.
Further, the Tribunal found that even if the applicant would face problems in the Punjab, it would be reasonable to expect him to relocate within India, having regard to his relative youth (at that time), his knowledge of languages, his education, his work experience and the assistance he could expect from his family in India to facilitate relocation.
The applicant raised, but did not address, a claim that there was a failure to comply with section 418(3) of the Act. This is an obligation imposed on the Secretary of the Department of Immigration and does not establish any jurisdictional error on the part of the Tribunal or, indeed, the delegate.
The applicant also raised section 424(1) of the Act. It provides:
That in conducting a review the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information the Tribunal must have regard to that information in making the decision on the review.
There is nothing in the material before me to suggest that there has been a failure to comply with section 424. It may be that the applicant intended to refer to section 424A but that has not been clarified. There is nothing in the material before me to suggest that there was any failure to comply with section 424A of the Act and there was no specific claim made in that regard. The Tribunal did refer to independent information such as would fall within subsection (3) of section 424A.
The applicant had an opportunity to attend a hearing to address his claim and matters of interest but did not do so. In those circumstances I am not satisfied either that there is breach of section 424A or a lack of procedural fairness in the manner in which the Tribunal dealt with information before it. No jurisdictional error is apparent in the first Tribunal decision. Accordingly the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that he meet the costs of these proceedings in the sum of $4,500. The applicant cites his impecuniosity, the fact that he has no permission to work and does not have a job. There is nothing in the circumstances of this case, including the applicant's impecuniosity, that warrants a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent. However the applicant's personal and financial situation may well be taken into account by the respondent in determining whether and how to seek to recover the costs.
As to the amount of the costs, I accept the submissions of the respondent that this matter was rendered more complex by the applicant's failure to clarify which decision was in issue. This may have been understandable at the time the application was filed (24 May 2004 while the applicant was in detention). However after the applicant left the detention centre the respondent's solicitors wrote to him and also to the solicitor who was his adviser under the Panel Advice Scheme asking him to clarify which decision was in issue. He did not do so. That necessitated additional work by the respondent in preparing submissions and considering files in relation to a number of decisions by the Department and Tribunal.
In all of the circumstances I consider that the amount of $4500 is appropriate.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 October 2004
3
3
0