SZBFF v Minister for Immigration
[2005] FMCA 253
•3 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBFF v MINISTER FOR IMMIGRATION | [2005] FMCA 253 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well founded fear of persecution for the convention reason of political opinion – where applicant chose not to attend Tribunal hearing – where applicant claims to have based this decision on his migration agents advice that non-attendance by the applicant would not matter – whether applicant denied procedural fairness – whether the court should consider an application for judicial review where the applicant admits no knowledge of the content of that application. |
| Federal Magistrates Court Rules 2001 |
| B41 of 2003 v The Minister [2004] FCA 30 Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 S58 of 2003 v The Minister [2004] FCAFC 283 |
| Applicant: | SZBFF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1622 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2005 |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1622 of 2003
| SZBFF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of India. He arrived in Australia on 19 August 2002. On 11 September 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 October 2002 a delegate of the Minister refused to grant a protection visa and on 18 October 2002 the applicant applied for review of that decision. On 3 June 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 August 2003. On 20 June 2003 the applicant advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The letter from the applicant is found at [CB 70] and is in the form of a document entitled Response to Hearing Invitation.
The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion is set out at [CB 15] – [CB 16]. The applicant claimed to be a member of the Congress Party and a sponsor of political campaigns in his area. He claimed that at the last elections in his state a Shiv Sena candidate won and that person was also a business competitor of his. The applicant claimed that following the competitor's successful election he commenced causing problems to the applicant in the applicant's business. The applicant claimed that he was arrested by the police and beaten severely requiring hospitalisation for a period of six months. He claimed that false cases were filed against him implicating him in selling illegal material through his business. He claims he was arrested and tortured for a week and his father had to bribe officials to release him from police custody. He said he had to go underground and seek shelter by running from pillar to post to relocate himself. He said that the police were still hunting him on the instructions of his competitor.
The matters which I have referred to above were before the delegate whose decision is found at [CB 53] – [CB 59]. At [CB 58] the delegate states:
“The applicant does not name the Shiv Sena candidate who has allegedly brought about his arrest, torture and lengthy hospitalisation. He does not name the hospital in which he claims to have spent six months recovering from the police beating. He has not named the Commissioner of Police who allegedly arrested him, falsely implicated him and was responsible for his torture for a week. He does not indicate where or when he was held during either arrest, nor does he describe in any detail what happened to him.”
On the same page of the delegate's decision other criticism of the applicant's application are made. The applicant received that decision and read it because at [CB 62] there is found his grounds for not being satisfied with the decision sent to the Tribunal signed by him at [CB 63]. I am satisfied that the necessity to clarify his claims would have been known to the applicant by the time he received the hearing invitation from the Tribunal.
In evidence before me today the applicant told me that he was not living at the address to which the hearing invitation was sent at the time it was sent and he did not receive it himself. The letter appears from the photocopy found at [CB 73] to have been sent by registered post (see the RP number in the top right hand corner). There is no indication that it was not delivered.
In any event the applicant does not deny that he went to see his migration agent shortly thereafter and they discussed whether or not he would appear before the Tribunal. The applicant claims that his migration agent told him that it was not necessary for him to appear. He stated that he said words to the effect that, "You can go if you want to. If you don't wish to, sign here. No harm will be done". The applicant stated that relying on that advice he chose not to go. I have no evidence of whether that conversation is accurate or not.
The applicant did not attend the hearing and the Tribunal in its short decision stated at [CB 80] – [CB 81]:
“If the applicant had attended the hearing before the Tribunal I would have asked him to give further details concerning all aspects of his claims. In particular, I would have asked him about his political activities in support of the Congress Party, when he was hospitalised and when he was arrested by the Commissioner of Police. The applicant's claims are very general and vague and the Tribunal does not accept as plausible that they would contain so few details, such as dates of incidents, especially since the applicant speaks English and was apparently assisted in the preparation of the application by a migration agent (DIMIA folio 8). The Tribunal does not accept as plausible that if the police are still looking for the applicant due to his competitor's political influence he would have able to have left India legally (DIMIA folio 2). That he was able to leave India legally is consistent with the view that at the time of his departure he would not [be] of any interest to the authorities, and the Tribunal so finds.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well founded fear of persecution within the meaning of the Convention.”
The reasoning of the Tribunal would appear to indicate that the applicant was unable to satisfy it that he was a person to whom Australia owed protection obligations.
The applicant filed an application to this court. But before me today he told me that he did not know what was written in it and that he had asked a friend to prepare it. He did not indicate that the friend had read the decision of the Tribunal and it seems to me that the grounds of application are generic. In my view if an applicant denies authorship of a document and admits to not understanding it the court should not be required to take it into consideration. It is not the applicant's document. But in case I am wrong about that view I will say that I am not satisfied that the Tribunal did fail to identify the issues in the case which it quite clearly did at [CB 80] when it set out the claims made by the applicant which were the only indication of those claims that the Tribunal could have had, the applicant not being present.
The claim that the Tribunal did not provide the applicant with an opportunity to comment on materials which the Tribunal relied upon is a clear indicator of the generic attributes of this application. The Tribunal did not rely upon any materials other than the statement put by the applicant himself.
The Tribunal may have failed to consider the applicant as a member of a particular social group, but if it did so it was because there was absolutely no evidence before it from which it could justify that assertion. The applicant's claim is placed fairly and squarely upon his alleged membership of the Congress Party and his falling out with a politician from a different party. Neither can it be said that the Tribunal failed to consider that the applicant had experienced mistreatment. The Tribunal noted that this was the applicant's claim but concluded that it was too vague for it to be satisfied of its veracity.
No particulars are given of the alleged failure to provide "substantial justice" and without those particulars it would be of no purpose for me to comment further. The real complaint of the applicant was made before me today. That was that it was all the fault of his migration agent that he did not attend the hearing. He gave evidence and was cross-examined. It seems clear to me from the evidence that he gave that he was aware of his opportunity to attend the hearing and determined not to go. The question of attendance at a hearing and advice from the migration agent was considered by Dowsett J in B41 of 2003 v The Minister [2004] FCA 30 where at [25], after considering the authorities and noting the comment of Gleeson CJ in Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 at [22] that:
“Procedural fairness can occur without any personal fault on the part of the decision maker.”
His Honour said:
“In my view, the prosecutor cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser led to his being denied procedural fairness.”
In S58 of 2003 v The Minister [2004] FCAFC 283, a Full Bench of the Federal Court considered the same matters and at [25], their Honours said:
“[The applicant] was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa. In our view, the duty of the Tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v The Minister [2003] FCAFC 171 at [33] and at [46].”
Their Honours went on to say at [26]:
“In our view, the appellant was offered an opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, among other reasons, he failed to take up that opportunity.”
In the circumstances, I am unable to provide this applicant with review of the decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 March 2005
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