SZAYF v Minister for Immigration (No.2)

[2005] FMCA 78

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYF v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 78

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.425 Migration Act or failure to accord procedural fairness where hearing proceeded notwithstanding medical condition of applicant and without interpreter where none had been requested – whether Tribunal invited applicant to comment on country information.

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural Affairs Re; Ex parte Miah (2001) 206 CLR 57
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6
Mazhar v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 188
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant: SZAYF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1331 of 2003

Delivered on: 1 February 2005

Delivered at: Sydney

Hearing date: 1 February 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed. 

2. That the Applicant pay the Respondent’s costs set in the amount of $6,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1331 of 2003

SZAYF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 18 June 2003 affirming a decision of the delegate of the respondent not to grant the applicant a protection visa.  

2. The applicant is a citizen of India.  He arrived in Australia on 9 March 2001 and applied for a protection visa on 21 March 2001.  He claimed to fear persecution in India at the hands of the Hindu majority for reason of his religion of Islam.  He described incidents over many years.  In particular he claimed that he and his brother had been witnesses in a court case against Hindus convicted of murder of Muslims, in 1996 that his family home had been attacked in February 2000 by a Hindu mob in the course of a Hindu-Muslim dispute and that in December 2000 a Hindu mob had attacked the local mosque.  He had ran away.  His brother had been injured.  In January 2001 his brother had been attacked and bashed and warned not to lodge or file a case in court. 

3. The application was refused by a delegate of the respondent on 19 June 2001.  The applicant sought review by the Tribunal.  He attended a Tribunal hearing on 3 April 2003 and gave oral evidence in support of his claims.  The Tribunal reasons for decision, which is the only evidence before the Court of what occurred at the hearing, indicated that the applicant told the Tribunal that after the family farm had been attacked in February 2000 he approached the police and was told by them that they would investigate but that no action was taken.  He said that his brother had sustained injuries as a result of the attack on him and that he had died as a result of those injuries. 

4. The Tribunal accepted that there were tensions between Hindu extremists and Muslims in India and that there were occasional incidents of violence against individuals of the Muslim faith, including the applicant.  It accepted the applicant's claims in respect of attacks on his property, including the death of his brother, and also other claims that he made about attacks by Hindus in the area and deaths of his relatives in 1982. 

5. The Tribunal acknowledged the impact of such incidents on the applicant and his family but also accepted that, as the applicant had stated at the hearing, he had managed to avoid another attempted attack on him and his farm in December 2000 by escaping to a different village in his district.  The Tribunal found that the applicant's own evidence indicated that serious incidents of violence were sporadic and not systematic and that between 1982 and February 2000, when the farm was attacked, the applicant had suffered no harm, let alone serious harm.  It also found that the incident that led him to leave the country was the event of December 2000, although he had not claimed that he had suffered any personal harm as a result of that event. 

6. The Tribunal referred to country information and a discussion at the hearing about whether the applicant had sought the protection of the authorities.  It found that there was effective state protection available to the applicant and for that reason he was not in need of international protection.  That finding was based on information about the attitude of Indian authorities to communal violence and also a consideration of the claims and evidence of the applicant at the hearing about the claimed failure by the police to take any action in respect of the attack on his farm.  The Tribunal did not regard his complaints as necessarily indicative of a failure of state protection.  It referred to other evidence which indicated state protection was available. 

7. As an alternative basis for its finding that effective state protection was available in the applicant's home state at a level sufficient to remove a real chance of persecution by Hindu extremists, the Tribunal considered that it would in any event be reasonable for the applicant to relocate to a different part of India in order to avoid revenge attacks and further incidents of communal violence in his area or surrounding districts.  The Tribunal had regard to the applicant's past experiences and to the fact that his fears of harm in the future were highly localised and concluded that it would be reasonable for him to move to some other part of India in light of independent evidence indicating that there were a number of states where the government had strong secular and pro-minority views. 

8. The absence of any acceptable reason from the applicant as to why he was unable to relocate, and his individual circumstances (his relative youth, education and the fact that he speaks English fluently, and was able to adapt to new environments, given his ability to settle in Australia over the past two years) were taken into account as well as the absence of any claim that he would be unable to earn a living.  The Tribunal found that it was satisfied that it was reasonable for the applicant to relocate to a different part of India.  It also considered the applicant's health in this respect.  He suffered from tuberculosis.  The Tribunal found on the basis of recent country information that his tuberculosis was not likely to hinder his ability to relocate, having regard to access to care and treatment in India. 

9. Finally, the Tribunal considered claims that the applicant's main concern was the threats levelled against him because of his involvement as a witness in a criminal trial involving a number of Hindus implicated in the murder of two Muslims.  He feared revenge by relatives and cohorts of those convicted.  However the Tribunal found that the essential and significant reason for such fear of harm was revenge rather than for any Convention reason.  Moreover, even if such people had singled out the applicant essentially for reasons of religion, it was reasonable for him to relocate to a different part of the state or country in order to avoid the possibility of such harm.  In conclusion the Tribunal found that it was not satisfied that the applicant's fear of persecution was well founded. 

10. The applicant sought review in this Court. He now relies on an amended application filed on 27 January 2005. Written submissions were filed by him on the day of the hearing. The amended application essentially raises three grounds. The first is that the Tribunal failed to consider or take into account the impact of illness on the applicant's capacity to give evidence before the hearing. He contends that he told the Tribunal on the phone that he was unfit to attend the hearing and give oral evidence but was compelled to attend the hearing. This ground raises the issues of whether the Tribunal complied with its obligations under section 425 of the Migration Act 1958 and with any obligation to afford procedural fairness to the applicant (the introduction of section 422B of the Migration Act having post-dated the application for review).

11. Under section 425 of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. It is clear that the opportunity to attend a hearing must be a real opportunity. Considering the specific issue of the applicant's illness, it is apparent from the material before the court that for some time after his application, the applicant was receiving treatment for tuberculosis. This was on an ongoing basis and he continued to be monitored through 2003.

12. It is also clear, both from Tribunal case notes that are reproduced in the bundle of relevant documents and from the Tribunal reasons for decision which describe the background leading up to the hearing, that the applicant's condition and its impact were brought to the attention of the Tribunal.  Initially the applicant's then adviser notified the Tribunal on 17 July 2002 that the applicant was suffering from tuberculosis and undergoing treatment and that he was unable to attend a hearing which at that stage had been scheduled for July 2002.  It was foreshadowed that the treatment was likely to continue at least until 15 November 2002.  A medical certificate was provided. 

13. There was ongoing communication between staff of the Tribunal and the applicant's adviser, the applicant and importantly, the applicant's doctors and nurses, in relation to his condition and whether he was fit to appear at a Tribunal hearing.  Relevantly, after a record of a discussion with a nurse looking after the applicant in February 2003, there is a file note of 24 February 2003 that a Tribunal staff member spoke to the applicant's doctor who confirmed that the applicant was well and able to come to the hearing and saw no reason why he should not be able to do so. 

14. There is also, consistent with what is recorded in the Tribunal reasons for decision, a record of a telephone conversation in which the applicant was informed by the Tribunal officer of his physician's assessment of his ability to attend a hearing.  He was told that the hearing was scheduled for 3 April 2003.  The applicant advised the Tribunal officer that he would attend his doctor again. 

15. By letter dated 24 February 2003 the Tribunal confirmed in writing the hearing would be on 3 April 2003.  Medical evidence from February 2003 consisting of letters from the nurse at the St Vincents Hospital Clinic, indicates that the applicant was being monitored and would required ongoing follow up for, at least, a year.  His next appointment was to be for May 2003.  The applicant wrote to the Tribunal indicating that he was to have further tests and referring to some of his medical difficulties in general terms.  He did not suggest that he was unable to attend a hearing in April 2003.  There is nothing before the court to indicate that there was any subsequent medical evidence put to the Tribunal. 

16. Moreover in the Tribunal reasons for decision the Tribunal indicates that in the course of the hearing it carefully monitored the applicant's ability to answer its questions and whether he was being hampered by health or language difficulties.  It had regard to the fact that the applicant's physician had been consulted to provide an assessment of his ability to give oral evidence.  He had confirmed that the applicant was fit to attend and give oral evidence.  The applicant at no point gave the Tribunal the impression he was incapacitated or unable to answer questions, or provide evidence due to his medical condition.  From time to time he stated that his memory failed him in recalling specific dates, but overall the Tribunal formed the view that the applicant was able to provide his evidence in a satisfactory manner, reinforced by the fact that on his own evidence since October 2002, the applicant had been working on an irregular basis (including the three days prior to the hearing) and he had an intention to work on the next day.  In those circumstances the Tribunal decided to proceed with the hearing. 

17. On the material before the Court it has not been established that the Tribunal either failed to comply with section 425 of the Migration Act or that it failed to accord the applicant procedural fairness or otherwise erred in relation to considering the impact of his illness upon his capacity to give evidence.

18. The second ground relied on by the applicant is that “Although I said I did not (sic) need an interpreter for the hearing, the hearing was conducted without an interpreter.  Therefore the RRT to fail to follow a compulsory procedure”.  In the written outline of submission the applicant conceded that he had said to the Tribunal that he did not need an interpreter for the hearing.  However it was contended that the fact that the Tribunal hearing was conducted without an interpreter amounted to a failure to follow a compulsory procedure. 

19. An issue arises as to whether the Tribunal has failed to comply in any way with its obligations under the Migration Act or at general law. There is no specific provision in the Migration Act requiring an interpreter. The s425 obligation encompasses a need for an interpreter in appropriate circumstances so that the applicant has a meaningful opportunity to give evidence and address Tribunal concerns. (See Perera v MIMA (1999) 92 FCR 6 and Mazhar v MIMA (2001) 183 ALR 188).

20. However in this case no error has been established.  The applicant told the Tribunal and also stated in his review application that he spoke English and did not need an interpreter.  In the application for a protection visa, the applicant indicated in response to the question: Which languages do you speak, write or read? English.  No other language was listed as a language that he spoke, read or wrote. 

21. After his application was refused by a delegate of the respondent, the applicant sought review by the Tribunal.  In the last section of the application for review (which is an interpreter's declaration to be completed by any interpreter used) is the handwritten statement: ‘N/A-I don't need interpreter’.  The applicant signed the application for review.  Further, the response to hearing invitation completed and signed by the applicant on 15 July 2002 leaves blank the response to the question: Do you need an interpreter? 

22. On the material before the court, it has not been established that the applicant had the need of an interpreter.  First, it has not been established that an interpreter was requested prior to the hearing; secondly, the only record of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  Those reasons for decision record that as well as stating that he did not feel well, the applicant claimed that his memory was affected by his condition and mentioned that he could explain things better in Hindi.  The Tribunal noted that the applicant appeared to understand what the Tribunal was saying, that he had stated in his application form that he spoke, read and wrote English and that he had not requested an interpreter for the hearing.  It went on to state that during the hearing it carefully monitored his ability to answer its questions and whether he was being hampered by language difficulties.  He demonstrated an ability to understand questions and respond in a coherent and appropriate manner.  The Tribunal stated that at no point did it form an impression that the applicant was having difficulties understanding it.  It was satisfied his English language skills were at a level which did not hamper his ability to give effective evidence to the Tribunal. 

23. There is no transcript of the Tribunal hearing before the court.  There is no communication from the applicant or the applicant's adviser with the Tribunal to suggest that he had a need for an interpreter or that issue was taken about the absence of an interpreter.  There is nothing in the material before me or in the submissions of the applicant to satisfy me that he was in any way disadvantaged in such a manner as to cause the Tribunal to fall into jurisdictional error by the absence of an interpreter at the hearing.  This ground is not established. 

24. The final ground relied on in the amended application is that the Tribunal ‘breached section 424A of the Migration Act in that it failed to give the applicant country information on India on the basis of which it rejected his application’. That claim is repeated in the outline of submissions. There is no particularisation.

25. It is the case that, as was conceded by counsel for the respondent, there is no evidence of a letter under section 424A in relation to the country information. Insofar as country information referred to in the decision was relied upon by the Tribunal in relation to either of the bases for its decision, such information was not specifically about the applicant or another person and falls within subsection 424A(3)(a) of the Migration Act, (in relation to which see the decision of the Full Court of the Federal Court in MIMIA v NAMW [2004] FCAFC 264 at [135]). Hence such information was not subject to the obligation under section 424A(1) to give the applicant particulars of information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. This answers the applicant's claim as put in his amended application.

26. Properly counsel for the respondent has gone on to address other aspects that might arise out of that claim.  I have considered whether any lack of procedural fairness is apparent.  The short answer to any claim expressed in terms of a lack of procedural fairness, is that while the applicant complains generally that the Tribunal failed to give him country information, this is not a case in which I am satisfied that it is appropriate to infer that the Tribunal did not raise any country information with the applicant in the course of the Tribunal hearing.  (See NAOA v MIMIA [2004] FCAFC 241 at [21] – [122]). The Tribunal's account of the hearing is expressed in general terms. There is no transcript before the court and on the material before me, I am not satisfied that the evidentiary basis for any such claim is made out.

27. In any event, while not all of the items of country information referred to by the Tribunal are referred to in the delegate's decision, some of the information or information to the same effect, was referred to in the delegate's decision.  Importantly, critical issues were raised with the applicant in the course of the delegate's decision.  I am not satisfied that this is a case in which, if it were the case that specific items of country information were not given to the applicant, it would be such as to constitute a lack of procedural fairness on the part of the Tribunal.  Turning first to the country information referred to by the Tribunal in relation to the issue of relocation.  The Tribunal relied on a number of factors in making its findings in relation to relocation, including the applicant's personal circumstances and his evidence.  It referred expressly to two issues that might be seen as arising out of independent evidence.  First that independent evidence before the Tribunal indicated that there were a number of states where the governments have strong secular and pro-minority views.  The particular source of this independent information is not identified by the Tribunal in the findings and reasons part of the decision.  It is the case that in considering an applicant's claims, a Tribunal is obliged to inform itself generally in relation to the situation in an applicant's country and assess his claims against such informed views.  It appears however that this may be a reference back to material that is extracted earlier in the decision from US Department of State India International Freedom Report 2001.  This information reflects in almost identical terms the 2000 US Department of State Report that is extracted and relied upon by the delegate to the same effect (that the four southern states are ruled by political parties with strong secular and pro-minority views.)  The Tribunal discussed with the applicant the issue of relocation.  It had already been brought to his attention by the delegate's consideration of the issue of relocation, as is apparent from the reasons of the delegate.  Not only was the issue of relocation ‘in the ring’, but the substance of the country information had been made known to the applicant by the delegate's decision.

1. Also in the Tribunal reasons for decision is a reference to country information in relation to care and treatment for suffers of tuberculosis in India. This is information which was not before the delegate. It post-dated the delegate's decision. Clearly it is not referred to in that earlier decision. However even if this information was not raised with the applicant (and I repeat that that has not been established) it is clear that the question of tuberculosis and the impact of that condition on the applicant and his health was something that was in the open. In the circumstances of an applicant from India suffering from tuberculosis, the situation for him, in light of his condition on return to India, was clearly something of which he was aware. Indeed he raised the question of his condition and ongoing treatment at the commencement of the Tribunal hearing, albeit in the context of addressing his fitness to participate in the hearing. On balance then, considering that the nature of this particular information and its limited relevance in light of the other factors on which the Tribunal based its findings of relocation, I would not be satisfied that jurisdictional error was established in relation to this information if there was a failure of the Tribunal to put the particular information to the applicant. As indicated above such information is within section 424A(3)(a) of the Migration Act. It is not critical in that the Tribunal had already made its finding that it was reasonable for the applicant to relocate. It has not been established that the applicant would have been taken by surprise by the relevance of the information in relation to relocation.

2. The alternative basis for the Tribunal conclusion was its findings in relation to effective protection.  There are some individual items of country information that are not referred to in the delegate's decision, in particular, DFAT Cables 30520 34296 and 39662.  Some information relates to an increase in the majority of the BJP, which was in power.  The Tribunal reached its conclusion about effective protection on the basis of the independent information that throughout India, where communal violence does occur, the authorities seek to end it at the earliest opportunity.  It does not orchestrate outbreaks of communal violence.  Those inciting communal violence could be prosecuted.  Both parties have sought to court the Muslim vote.  The Congress Party won a large outright majority and currently holds power in Rajasthan.  It is a secular party, and there was no evidence before the Tribunal that it pursued a Hindutua agenda nationally, or at a state level. 

3. Again, while not all of the precise information relied upon was referred to in the delegate's decision, the issue of effective protection was a matter that was dealt with by the delegate who referred to general information in relation to the situation of India, under the BJP led Alliance Government.  This issue (the situation under the BJP) and the issue of a perceived shift away from anti-Muslim sentiments were made known to him.  The particular items of independent country information amount, in essence, to no more than an updating of information in relation to the political situation in India.  (See Re MIMA; Ex parte Miah (2001) 206 CLR 57 per Kirby J at [196]).

4. This is not a situation where the information is such that it falls within the principles considered by the High Court in Miah. It is not information of a significant change in circumstances with a particular impact on the applicant, such that it was necessary for it to be disclosed given the background of what had occurred in the delegate's decision and thereafter. In any event there is no evidentiary basis for the applicant's claims. If it were necessary that the information be brought to the attention of an applicant, it would be sufficient for the gravamen or substance of such information to be brought to his or her attention. It has not been established that that did not occur in the Tribunal hearing. It has not been established that there was a failure to comply with section 424A or a lack of procedural fairness.

5. As no jurisdictional error has been established by the applicant under the amended application, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet the costs of today.  It is appropriate that the unsuccessful applicant should meet the costs of the respondent. 

2. This matter is complicated by the fact that the matter was first listed for hearing on the 15 November 2004 and dismissed for non-appearance of the applicant.  At that stage costs were fixed in the sum of $4,250, there having been the normal pre-hearing preparation by the respondent including written submissions prepared on the basis of the original application filed by the applicant. 

3. On 6 December 2004 the orders dismissing the application were vacated as medical evidence was subsequently produced by the applicant in relation to his absence from the hearing on 15 November 2004. 

4. Since that time the applicant has filed an amended application.  It is notable that he did not do so in accordance with the original orders made at the first directions hearing on 4 September 2003 (which provided for filing of an amended application by 9 October 2003).  That order was repeated in the orders that I made on 9 December 2004.  The amended application raised grounds which necessitated additional work by counsel for the respondent in preparation of oral submissions.  No further written submissions have been prepared by the respondent. 

5. In all of those circumstances, while the respondent seeks costs of $8,200, I am not persuaded that costs in that order are justified by what has occurred.  However there was additional preparation time, because of the need to respond to the amended application as well as the costs of the second hearing.  In light of all the circumstances I consider that the court should fix the costs and that an appropriate amount is the sum of $6,000. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 February 2005