SZARD v Minister for Immigration

[2004] FMCA 447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARD v MINISTER FOR IMMIGRATION [2004] FMCA 447

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – procedural unfairness – whether applicant confused by correspondence from the RRT asserting that it had considered all of the “Part B” documents considered by the delegate – finding that the RRT had in fact considered all of these documents – no reviewable error found – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.418, 424, 424A

Muin v Refugee Review Tribunal (2002) 190 ALR 601

NADR v Minister for Immigration [2003] FCAFC 293

NADZ v Minister for Immigration [2003] FCA 118

NAYU v Minister for Immigration [2004] FCA 118

Applicant: SZARD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ932 of 2003

Delivered on: 15 July 2004

Delivered at: Sydney

Hearing date: 15 July 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms K Morgan

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the 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

SZ932of 2003

SZARD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 September 2002 and handed down on 23 October 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from India and made claims of religious persecution.  The relevant backgrounds facts and circumstances are set out in paragraphs 2 to 10 of written submissions prepared on behalf of the Minister by Ms Morgan.  I adopt those paragraphs for the purposes of this judgment:

   The applicant, who is a citizen of India, arrived in Australia on 23 February 1998. On 25 February 2000 he lodged an application for a protection visa (court book, pages 1-26).  On 20 March 2001 a delegate of the Minister refused the application for a protection visa (court book, pages 27-37).  The applicant sought review by the RRT.

   On 21 December 2001 the RRT wrote to the applicant inviting him to comment on information, specifically the similarities between the applicant’s application and other applications and submissions to the RRT (court book, page 42). On 18 January 2002 the applicant responded in writing to this invitation (court book, pages 45-47).

   On 21 December 2001 the RRT invited the applicant to attend a hearing in order to give evidence and present arguments in support of his claims (court book, pages 43-44).  On 18 January 2002 the applicant declined this invitation (court book, page 48).

   On 23 October 2002 the RRT handed down its decision, which affirmed the decision of the delegate not to grant the applicant a protection visa (court book, page 51).

   The applicant’s claim for refugee status

   The applicant claimed that he had a well founded fear of persecution upon his return to India because of his ethnic and religious status as a Muslim. The Statement of Claim attached to his application (court book, pages 24-26) and the letter sent to the RRT on 18 January 2002 (court book, pages 45-47) set out the bases for this claim.

   The particular claims made by the applicant were that:

   i)He lived in a region of India that was dominated by a Hindi majority;

   ii)His father died during a Muslim-Hindu riot;

   iii)He was the joint secretary of the local Muslim Student Federation;

   iv)He was the victim of systematic harassment, the target of false charges and detained;

   v)He was not able to perform his religious obligations; and

   vi)He formed the Muslim student’s Welfare Association and as a result was the victim of physical abuse.

   The RRT’s decision

   In its decision, the RRT set out the constituent elements of the definition of a refugee (court book, pages 53-55), summarised the applicant’s application[1] and set out the issues it would have asked the applicant had he attended the hearing, specifically:

   b)For details of victimisation and discrimination, including in relation to religious rites;

   c)The circumstances of his father’s death;

   d)Similarities in his claim to other applicants to the RRT;

   e)Independent evidence about the role of the State; and

   f)His ability to obtain a passport and leave India in his own name

   The RRT was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention and as such did not satisfy the criterion set out in the Migration Act 1958 (Cth) (“the Migration Act”).

   Accordingly the RRT affirmed the delegate’s decision.

   [1]Court book, pages 55 and 57 (note court book, page 56 is a duplicate of court book, page 58).

3. Ms Morgan also sets out in paragraph 11 and paragraph 12 an accurate statement of the grounds of review set out in the amended application filed on 31 October 2003.  I also adopt those paragraphs for the purposes of this judgment:

   The applicant, in his amended application, alleges:

   a)that the RRT’s decision was affected by an “error of law, lack of procedural fairness and denial of natural Justice Issue”; and

   b)that his case is identical with Muin v Refugee Review Tribunal (2002) 190 ALR 601.

   The only particular provided to the grounds is an allegation that the RRT failed to collect the applicant’s Part B documents from the DIMIA file and decided the matter without such documents.

4. As Ms Morgan notes in paragraph 13 of her written submissions, two letters were sent to the applicant dated 21 December 2001.  The first letter (court book, page 42), advised the applicant, in accordance with the RRT’s statutory and common law obligations to observe procedural fairness, that the RRT had information that would, subject to any comments he wished to make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  The applicant was entitled to comment on that information and did so in a written submission commencing on page 45 of the court book.  The second letter appears on page 43 of the court book.  The letter is dated 21 December 2001, and begins:

   The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.

5. The applicant responded to that in invitation in the response appearing on page 48 of the court book.  His response was that he did not wish to attend the hearing and that he would submit a written submission which he, in fact, did. 

6. The applicant's judicial review application asserts that his case raises the same issue as that dealt with by the High Court in its decision in Muin.  There are numerous problems with that argument.  These are essentially set out by Ms Morgan in paragraph 14 of her written submissions.  I agree with and adopt that paragraph.

   First, Muin is inapplicable to this application. Unlike Muin, there are no agreed facts, and the applicant has not proved or even sought to prove in this case is that:

   a)Based upon the letters he had a belief that the documents set out in the delegate’s decision had been sent and considered by the RRT (Muin at [255]);

   b)The RRT did not in fact receive those documents (Muin at [250])

   c)The RRT did not in fact review those documents (Muin at [250])

   d)Had the applicant been of the opinion in (a) and known of (b) and (c) he would have made further submissions and drawn them to the respondent’s attention (Muin at [255]).

   (See NADR v Minister for Immigration [2003] FCAFC 293 at [19] – [26] per Kiefel J, NADZ v Minister for Immigration [2003] FCA 118 at [14] per Hely J, NAYU v Minister for Immigration [2004] FCA 118 at [13] per Jacobson J.)

7. Directions in this matter were given by Registrar Kavallaris on 10 July 2003.  The Registrar relevantly ordered that the applicant file and serve any evidence on which he proposed to rely on or before 30 September 2003.  The applicant has had an ample opportunity to file evidence that would be necessary for him to sustain this claim based upon the High Court's decision in Muin.  He has not filed any evidence.  I would not give the applicant the opportunity to lead evidence now, as that would be procedurally unfair to the Minister.  However, I did take into account what the applicant told me from the bar table.  From the bar table, the applicant told me two things.  The applicant told me that he was confused by the two letters dated 21 December 2003.  However, I accept that there was any confusion.  He responded clearly to the invitations contained in both letters.  He initially told me, from the bar table, that when he received the letter appearing on page 43 of the court book, he thought that there was no point in attending the RRT hearing because the RRT had, in effect, already made a decision.  In his submissions, the applicant put to me that the letter indicated pre‑judgment.

8. I accept that the applicant may have formed a view, on receiving the letter appearing on page 43 of the court book, that his case was hopeless and that there was no point in attending.  However, I do not accept the submissions that the letter indicates pre-judgment.  On the contrary, that letter shows compliance with the procedural fairness obligation upon the RRT to indicate to the applicant that based upon the written material before the RRT, his application was likely to fail, and that he was entitled to accept an invitation to attend before the RRT to attempt to persuade the RRT to a different decision.  He did not accept that invitation.

9. Later, in his submissions in reply, the applicant told me that he was confused by this letter because he thought that the RRT might make a different decision when it had read all of the part B documents, which are listed on page 29 of the court book.  This is contrary to what he told me in his initial submissions from the bar table and the interpretation, which he now seeks to put on the letter appearing on page 43 of the court book, is not reasonably open.  There is no indication in that letter that the RRT had not, at that stage, looked at all of the part B documents.  On the contrary, there is a clear assertion that the RRT had looked at all of the part B documents.  That assertion is repeated several times in the decision and reasons of the RRT, for example, on page 55 of the court book.

10. I have no reason to believe that the assertion is false.  The conclusion I draw is that contrary to the facts pertaining in the case of Muin, in this case, the RRT did have regard to all of the part B documents.

11. The applicant also asserts that there was a failure by the Secretary of the Minister's department to make available all of the part B documents to the RRT. The application asserts a breach of s.418(3) of the Migration Act. There is an issue whether a breach of that section would be a jurisdictional error and, if so, an error by whom? I do not need to decide that issue because, on the state of the evidence in this matter, the only conclusion that is reasonably open to me is that all of the part B documents were provided in some form to the RRT. The part B documents numbered 1 and 2 on page 29 of the court book were clearly referred to by the RRT and so must have been made available. This is apparent from the decisions and reasons of the RRT, and the letter appearing on page 60 of the court book, and the citation list appearing on page 61. Documents numbered 3 and 4 on page 29 were both documents made available to the RRT on the CISNET electronic information database. In my view, making available those documents on that database, satisfies the obligation placed upon the Secretary under s.418(3).

12. The amended application refers to a breach of s.424(1) of the Migration Act. In his oral submissions, the applicant changed this to an asserted breach of s.424A(1) of the Migration Act. The only factual assertion, however, relates to the part B documents. I do not consider that s.424A is currently relevant in these proceedings. No particulars of any asserted breach either of the Act or of general law obligation of procedural fairness have been given. There is no breach of s.424(1) either. The RRT asserts that it did have regard to all of the Part B documents. I accept that assertion. On my reading of the decision and reasons of the RRT, there is no jurisdictional error on the part of the RRT either as asserted by the applicant or otherwise.

13. It follows that the decision of the RRT is a privative clause decision.  The consequence of that finding is that the notice of objection to competency filed on 11 July 2003 must be upheld.

14. The decision of the RRT was made on 27 September 2002 and handed down on 23 October 2002. It was made known to the applicant many months before his original application was filed on 27 May 2003. The application was not filed within the 28 day time period prescribed pursuant to s.477(1)(a) of the Migration Act. That is a time period I have no power to extend. The time period applies to any decision which is a privative clause decision. I have found that this decision is a privative clause decision and hence the time limit on applications applies.

15. I will, therefore, dismiss the application as incompetent.

16. On the question of costs, the application having been dismissed as incompetent, costs should follow the event.  Ms Morgan has sought an order for costs fixed in the sum of $3,500.  The applicant has referred to his financial circumstances and has sought time to pay.  Impecuniosity is not a reason for me to refrain from making a costs order.  I do not proposed to require costs to be paid in any particular time. 

17. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 July 2004