SZBNJ v Minister for Immigration

[2005] FMCA 338

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBNJ v MINISTER FOR IMMIGRATION [2005] FMCA 338

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant failed to attend Tribunal hearing – no jurisdictional error. 

Migration Act 1958, s.424A

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 547

Applicant: SZBNJ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2011 of 2003

Judgment of: Barnes FM

Hearing date: 8 March 2005

Delivered at: Sydney

Delivered on: 8 March 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the Respondent’s costs set in the amount of $3,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2011 of 2003

SZBNJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of India who claimed that he joined the Congress Party in about 1996.  He claimed that he played a major role in that party’s election victory, that the opposition wanted him to join them and that when he did not they attempted to attack him.  He claimed that for some three years thereafter he was so troubled by the opposition that he moved to another city but was followed and assaulted.  His application was refused by a delegate of the respondent.  In his application for review he took issue with the delegate’s decision and stated:  “The authorities are not prepared nor interested in my genuine fear.”

2. The Tribunal wrote to the applicant on 9 July 2003, at the only address provided by him in the review application, informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. It invited him to a hearing on 12 August 2003. The Tribunal reasons for decision record that the applicant did not respond to this invitation. The letter was not returned unclaimed and the applicant did not appear before the Tribunal on the day, time and place scheduled. Departmental records did not reveal a more recent address but indicated that he was still in Australia. In those circumstances the Tribunal proceeded to make a decision on the review, without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act 1958.

3. The Tribunal was not satisfied of the veracity of the applicant's claims because of their implausibility, inconsistency with independent evidence and the lack of detail.  It is relevant that the applicant was placed on notice of concerns about the adequacy of his information and the credibility of his claims by the delegate’s decision, which pointed out that the information he had provided was broad, vague and lacking in relevant detail.  The Tribunal referred to the fact that the claims relied entirely on an unauthorised translation of a photocopied, handwritten document of unknown origin making claims about the applicant's critical role in the Congress victory.  The applicant was not specific about which election he claimed to have played a prominent part in and the Tribunal noted that on the independent evidence it was the TDP Party in coalition with the BJP which won the 1999 elections.

4. Despite the applicant’s claim about playing a prominent part in an election, the Tribunal had been unable to find his name in any of the wide range of sources available to it.  It stated that had he attended the hearing it would have questioned him about this and about his political activities in general, but found that, without more, it was unable to accept that the applicant had such a profile as to bring him to the adverse attention of the opposition party.  It did not find his claim that the Hindu opposition was so impressed by his political achievements that they sought to have him (a Muslim) come over to their side to be plausible.  It noted that the applicant had foreshadowed submitting further documentation in support of his claims, but that this had not happened despite there being nearly a year for it to occur.  The Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

5. The applicant sought review of the Tribunal decision by application filed in this court on 29 September 2003.  That application relied on six very general and unparticularised grounds.  At a directions hearing the applicant was ordered by consent to file and serve an amended application.  An amended application was filed on 17 March 2004.  All that it is does is repeat precisely the same grounds as appear in the earlier application, albeit in a different order.  It contains no particulars or additional information. 

6. In oral submissions today the applicant added nothing to what was in his amended application.  He claimed that he had relied on his migration agent to prepare this document.  He provided no particulars or elaboration of the grounds on which he purports to rely on.  Nonetheless I have considered the grounds in the amended application.  The first of these is a claim of a breach of the rules of natural justice.  As indicated, there is no particularisation of this or any other ground.  No lack of natural justice is apparent on the material before the court.  The Tribunal advised the applicant that it could not make a favourable decision on the information he had presented.  Despite this the applicant provided no additional material beyond what was in his protection visa application and his review application.  He failed to attend the Tribunal hearing, at which time he could have provided oral evidence and arguments in support of his claims and provided no explanation for his failure to attend. 

7. In such circumstances, as the Full Court of the Federal Court said in NAVX v MIMIA [2004] FCAFC 287, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution. As in that case this Tribunal found the applicant's claims not sufficient to satisfy it that he had a well-founded fear of persecution. In those circumstances it could do little more than offer him an opportunity to elaborate and, as the court stated in NAVX at [5], when he failed to accept that opportunity the inevitable consequence was the rejection of his application.

8. On the material before me it is also apparent that the Tribunal met its obligations under s.425 of the Migration Act 1958 to invite the applicant to a hearing. The invitation was given in accordance with s.441A(4) and met the requirements of s.425A and the Tribunal was empowered by s.426A to proceed as it did.

9. In relation to independent country information to which the Tribunal referred, the Tribunal was not under any obligation to give the applicant details of such information under s.424A(1) as it was not specifically about the applicant and fell within the s.424A(3)(a) exception. While s.422B of the Act applies, it is not necessary in the circumstances of this case to consider its precise scope, as I am not satisfied that there was any lack of procedural fairness given the applicant's failure to attend the Tribunal hearing.

10. Ground (b) suggests that the procedures required by law to be observed were not observed.  I have already indicated that the requisite procedures were observed in relation to inviting the applicant to a hearing and no jurisdictional error is established on this basis.  Ground (c) in the amended application is that there was no evidence or other material to justify the making of the decision.  This ground is not established.  It is for the applicant to advance his case and for the Tribunal to decide whether it is made out.  There was no obligation on the Tribunal in the circumstances of this case to make further inquiries or to prompt elaboration by the applicant which he chose not to embark on. 

11. The general contentions in the final three grounds, that the decision was otherwise contrary to law, that it involved an error of law and that was an improper exercise of power do not establish jurisdictional error.  No particulars have been provided and there is nothing in the material before me to suggest that the Tribunal fell into jurisdictional error in the manner contended.

12. The Tribunal findings in relation to credibility were a matter for the Tribunal: Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407 at [67] per McHugh J. The finding were open to the Tribunal on the material before it and were within its jurisdiction: Kopalapillai v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 547 at 558 and 559.

13. No jurisdictional error has been established.  The application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant meet the costs of these proceedings in the sum of $3000.  The applicant does not take issue with his liability for costs or with the amount sought. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  22 March 2005