SZBPB v Minister for Immigration
[2005] FMCA 395
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPB & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 395 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and political persecution in India – applicants failing to respond to RRT hearing invitation – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.427 |
Minister for Immigration v Guo (1997) 144 ALR 567
Minister for Immigation v Wu Shiang Lang (1996) 185 CLR 259
First Applicant: Second Applicant: | SZBPB SZBPC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2083 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 22 March 2005 |
| Delivered at: | Griffith |
| Delivered on: | 22 March 2005 |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2083 of 2003
| SZBPB |
First Applicant
SZBPC
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 22 August 2003 and handed down on 18 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are from India and have made claims of political and religious persecution. I adopt as background relevant parts of paragraphs 2-17 of written submissions prepared by Mr Markus on behalf of the Minister:
The applicants are husband and wife and citizens of India.[1] The applicants arrived in Australia on 18 September 2002.[2] On 8 October 2002 the applicants lodged an application for a protection (Class XA) visa.[3] Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.
[1] court book, page 4
[2] court book, page 16
[3] court book, pages 1, 54
The applicant’s claims were detailed in the letter from the applicants’ authorised recipient dated 1 October 2002 that enclosed the protection visa application[4].
[4] court book, pages 1-3
In summary, the applicant claimed a well founded fear of persecution in India on the basis of his religion (Hindu) and political opinion (having been a candidate for the BJP party in elections held in Gujarat for a local municipal council in 2001). The leader of the Muslim League Party (“MLP”) was the successful candidate and thereafter the applicant claimed he was targeted by the leader, his followers and Muslim extremists. The applicant claimed his business was destroyed in early 2002; he complained to the police but they took no action. He claimed that, in August 2002, he was kidnapped by Muslim extremists, but managed to escape by jumping from a second floor window of the building where he was held. [5]
[5] court book, pages 2, 82.6 [4], 86-87.2 [24]-[34].
The Minister’s delegate refused the applicant’s application for a protection visa on 5 November 2002. The applicants applied to the RRT to review that decision on 21 November 2002. [6] Under the section for reasons for making the application, the applicants foreshadowed that a “detailed submission” would be “filed later”. [7]
[6] court book, pages 69-72, 82.2
[7] Ultimately no such submission was received by the RRT - see court book, page 89.9
On 7 July 2003 the RRT sent a letter to the applicants[8], at their mailing address[9], which was copied to their authorised recipient[10], stating:
[8] court book, pages 3-74
[9] court book, page 69.8
[10] court book, page 70.6
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicants to a hearing on 21 August 2003.
On 14 August 2003 the RRT sent a facsimile to the applicants’ authorised recipient[11], to his facsimile number[12], requesting that he telephone the RRT about the applicants’ hearing.
[11] court book, page 75
[12] court book, page 70.7
On 14 August 2003 the RRT also attempted to telephone the applicants[13], at their telephone number[14], but the number was disconnected.
[13] court book, page 76.6
[14] court book, page 70.2
No response was received from either the applicants or their authorised recipient. The applicants did not appear before the RRT on the day and at the time and place they were scheduled to appear. Pursuant to s.426A of the Act the RRT proceeded to make its decision on the review without taking any further action to allow or enable the applicants to appear before it. [15]
[15] court book, pages 82.7-83.4, [5]-[8]
The RRT’s decision
The RRT had significant doubts about the truthfulness of the applicant’s claims and, in the circumstances where the applicant did not provide any reasons for disagreeing with the decision made by the Minister’s delegate, and where he failed to appear at the hearing to explain his claims and fears, the RRT could not be satisfied that the applicant has a well founded fear of persecution in the relevant sense.
The RRT had difficulty with the applicant’s claims in a number of respects, including:
a)that the applicant had provided no detailed particulars of the nature and extent of the mistreatment to which he had claimed to have been subjected;
b)the RRT in its research was unable to find any reference to the “Muslim League Party” in the state of Gujarat;
c)according to independent information cited[16] and accepted by the RRT, the BJP party was the ruling party in Gujarat and the Hindu community in that state comprised a majority of about 88%;
d)even assuming the RRT was satisfied on the evidence that there was a party known as the MLP in Gujarat, the RRT found it “prima facie implausible” given the strength of the BJP party in Gujarat that members of the MLP would target the applicant prior to the council election in 2001;
e)the RRT had “great difficulty” accepting that the applicant would not in these circumstances seek the assistance of the police, or that the Hindu dominated police in response would not assist the applicant;
f)there was no evidence which satisfied the RRT that the applicant had a “high profile in Gujarat as a BJP functionary such that he would likely be targeted by Muslims”[17].
The RRT did not accept as truthful the claims of the applicant that he was kidnapped in August 2002 by Muslim extremists. [18]
Given the rioting that followed the Gujarat train disaster in February 2002, the RRT considered that it was “implausible but possible” that the business premises of a Hindu would have been targets, but concluded that even if the applicant’s business premises were destroyed, “this was a random act of violence in a time of heightened religious tension” and was not Convention based persecution. [19]
The RRT did not accept that a person defeated by a member of a Muslim party would be pursued by the “victors” if they relocated to another state, and did not accept that the applicant ever considered relocation or that it was necessary to do so. [20]
In all the circumstances, the RRT could not be satisfied that the applicant would suffer serious harm for a Convention reason if he returned to India in the foreseeable future. The RRT was therefore not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention and affirmed the decision not to grant protection visas to the applicants. [21]
[16] court book, pages 87.2-89.2 [35]
[17] court book, pages 90.2-90.8 [41]
[18] court book, page 90.10 [42]
[19] court book, page 91.2 [43]
[20] court book, page 91.4 [44]
[21] court book, pages 91.6-92.4 [46]-[49]
The applicants rely upon their further amended application for review filed in court on 16 August 2004. The applicants also sought to rely upon an affidavit made by the first applicant on 13 August 2004. Mr Markus objected to me receiving the affidavit on the basis of relevance. I agreed with that submission. The matters raised in the affidavit are purely factual and were matters that the applicants had already put before the RRT. They do not relate to any issue in dispute between the applicants and the Minister in these proceedings. I declined to accept the affidavit as evidence of the truth of the matters contained in it. I did receive the affidavit as written submissions. However, as I explained to the applicants, the document does not assist them. It raises a contest with the merits of the RRT decision but does not point to any jurisdictional error.
Several asserted grounds of review are advanced in the further amended application. These are set out in paragraph 18 of Mr Markus’ written submissions which I adopt for the purposes of this judgment:
The applicants filed a further amended application in this Court on 16 August 2004. It states seven grounds of review in general terms:
a)breach of the rules of natural justice;
b)denial of procedural fairness;
c)error of law;
d)jurisdictional error by identifying the wrong issue/applying the wrong test;
e)jurisdictional error by failing to take into account a relevant consideration;
f)jurisdictional error by taking into account an irrelevant consideration;
g)that the decision was otherwise contrary to law.
I agree with and adopt paragraphs 20-31 of Mr Markus’ written submissions for the purposes of this judgment:
Eight particulars have been provided in support of the grounds pleaded, but the particulars do not relate to all of the above grounds.
Particulars one and two are interrelated and, in effect, take issue with a statement in the RRT’s decision as to the limited aspects of the applicant’s claims which are verifiable. Particular 1 sets out the RRT’s statement that is the subject of the complaint and Particular 2 purports to set out other “verifiable facts that the applicant stated in his application”.
In fact, only one of those “verifiable facts” come from the applicant, the others referred to in this particular are from country information quoted by the RRT. Relevantly, however, the point made by the RRT in that part of its decision quoted at Particular 1 is that only one of the applicant’s specific claims ties in directly with independent evidence available to the RRT. The information referred to in Particular 2 is general in nature and does not directly relate to the applicant’s specific claims. More importantly, however, even if the RRT is wrong in this respect, this would be an error of fact, not an error of law, let alone an error going to the RRT’s jurisdiction.
Particular 3 asserts, in substance, that the RRT did not take into account independent evidence that was referred to in the delegate’s decision about the situation in Gujarat.[22] It is asserted that, as a result, the RRT failed to consider that the Muslim minority performs human rights abuses against the Hindu majority.
In response, the respondent submits that the RRT clearly stated that it had regard to the material referred to in the delegate’s decision. [23] In any event, in so far as the independent evidence referred to by the delegate is concerned, evidence much to the same effect is quoted by the RRT in its decision. There is no basis for asserting that the RRT failed to have regard to these matters.
Particulars 4 and 5 assert that the RRT, having accepted that the applicant was a council member of the BJP, failed to take into account independent evidence that was referred to in the delegate’s decision, that a person in the applicant’s position would be targeted by Muslim extremists. Again, this was material the RRT clearly had regard to. The applicant seeks to cavil with the ultimate conclusions reached by the RRT which, in the circumstances already referred to, were all but inevitable.
In respect of Particulars 1 to 5, it appears that the applicant essentially seeks merits review of the RRT's decision, which is not the function of this Court: Minister for Immigation v Wu Shiang Lang (1996) 185 CLR 259 at 272.
In relation to Particulars 6 and 7, the applicant asserts that the RRT did not take into account independent evidence that was referred to in the delegate’s decision that there was a reference to the “Muslim League” and thus “Indian Union Muslim League” was not the only reference amongst the reports. [24] Again, at its highest this would be a mistake of fact. In any event, however, the RRT was prepared to assume that there was a party known as the MLP in Gujarat (but nevertheless found it “prima facie implausible” given the strength of the BJP party in Gujarat that members of the MLP would target the applicant prior to the council election in 2001).
The particular numbered 8 is not a particular at all but rather a re-statement of some of the grounds above.
The applicant, not surprisingly, is not satisfied with the RRT’s decision. As already noted, however, the RRT had to reach its decision in circumstances where the applicant did not appear at the hearing to explain his claims and fears and to address the doubts and concerns that the RRT had with the claims as made to that point.
On review of an adverse decision by a delegate of the Minister, such as here, it is for the applicant to satisfy the RRT that all of the statutory elements are made out: Minister for Immigration v Guo (1997) 144 ALR 567 at 596. The criteria for the grant of a protection visa require that the RRT be “satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”: Regulation 866.221.
In the present case, the RRT identified in detail the various matters on which it based its findings regarding the applicant’s credibility and the credibility of his claims.
[22] court book, pages 2, 63-65
[23] court book, page 85.7 [22]
[24] court book, page 64.3
Subject to my following comments, that is determinative of the outcome of these proceedings.
It is apparent from the decision and reasons of the RRT that the applicants were unsuccessful because the presiding member was unable to attain the degree of satisfaction required in order to make a favourable decision. It is also apparent that the inability of the presiding member to achieve the necessary degree of satisfaction was largely determined by the failure of the applicants to attend a hearing to which they were invited. The relevant circumstances are set out under the heading “Procedural History” on pages 82 and 83 of the court book. The applicants assert procedural unfairness but it is plain that the procedure followed by the RRT was both authorised by the Migration Act 1958 (Cth) (“the Migration Act”) and fair.
It is disturbing that the applicants’ migration agent, Ajay Kumar of Intra World Immigration Services of Killara, failed to respond to both the hearing invitation sent to him by post and also a follow up facsimile message sent from the RRT. That failure does not appear to me to be consistent with Mr Kumar’s professional obligations to his clients. However, to his credit the first applicant conceded from the bar table that he must also bear some responsibility. The hearing invitation had been sent to him and he did not respond to it. He told me that he had been advised by a friend that it was unnecessary for him to attend. If that advice was given, it was very poor advice.
The applicants had been advised by letter dated 7 July 2003 (court book, page 73) that the RRT was unable to make a favourable decision on the basis of the material it then had. It should have been clear both to the applicants and their migration agent that their attendance at the hearing to which they had been invited was, at a minimum, highly desirable. Their failure to attend in effect determined the outcome of their application to the RRT. The first applicant told me from the bar table that he had left his affairs in the hands of his migration agent Mr Kumar. It is true that he had authorised Mr Kumar to be the recipient of correspondence[25]. However, as Mr Markus pointed out in his oral submissions, s.427(6) of the Migration Act makes clear that an applicant has no right of representation at a hearing. Mr Kumar could not attend a hearing in place of the applicants, although he might attend with them. Unfortunately, these applicants failed to attend the RRT hearing and the negative outcome was inevitable.
[25] court book, page 70
There is no jurisdictional error in the decision of the RRT.
I will therefore dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Mr Markus seeks an order for costs fixed in the sum of $4,000. I am satisfied that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. The first applicant asked whether the amount of costs might be reduced. I explained to him that his ability to pay was not the relevant consideration. I will order that the applicants pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 April 2005
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