SZBPE v Minister for Immigration - [2005] FMCA 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPE v MINISTER FOR IMMIGRATION

[2005] FMCA 607

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.418(3), 424A and 424A(3)(a)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NADR of 2001vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465

Applicant:

SZBPE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2085 of 2003

Judgment of:

Barnes FM

Hearing date:

4 May 2005

Delivered at:

Sydney

Delivered on:

4 May 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2085 of 2003

SZBPE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant seeks review of a decision of the Refugee Review Tribunal handed down on 18 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, arrived in Australia on

2 October 2002 and applied for a protection visa. The application was refused and he sought review by the Tribunal. On 26 June 2003 the Tribunal wrote to the applicant at the mailing address provided on his review application (which was also his home address) and a copy of that letter was sent to his nominated authorised recipient.
The letter invited the applicant to attend a hearing on 7 August 2003 and advised 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. On 22 July 2003 the Tribunal received a response to hearing invitation from the applicant in which he indicated in response to the question, “Do you want to come to a hearing?”: “No.” That box carries after it the words:
I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal reasons for decision record these events and that the matter was determined on the evidence available to the Tribunal. The Tribunal noted that it had before it the Department's file including the protection visa application and the delegate's decision and that the Tribunal had had regard to the material referred to in the delegate's decision and other material available to it from a range of sources.
The only place in which the applicant's claims appear in the material before the Tribunal is in a covering letter from his migration agent accompanying his protection visa application in which it is stated that the applicant instructed the agent.
While the protection visa application states: ‘Please see the statement attached’ it appears that there is no other statement accompanying the protection visa application. The applicant claimed to be a member of the MIM Party in India who was active in political and also social events. He claimed that he had played an instrumental role in social activities and that he had become what was described as ‘salt in the eyes’ of leaders of rival political parties. He claimed that those parties tried to induce him to join them or work for them and that when he refused he was threatened and beaten. He claimed that he and his parents were also threatened that they would be killed if a complaint was lodged with the police. He claimed that he did lodge such a complaint but no action had been taken at the time of his protection visa application.
The applicant also claimed that he was accused of involvement in the Gujarat train tragedy that occurred in early 2002, that he went underground and remained underground to save his life from extremists of the BJP and the RSS parties and other non-Muslim parties of the State in which he lived. He moved to New Zealand as a student in 2002 and claimed that he received threatening phone calls there and then came to Australia.
The Tribunal found that on the basis of the evidence before it, it was unable to be satisfied that the applicant was any more than an ordinary member of the MIM Party. It was not satisfied that he was targeted by members of Hindu parties in his city or elsewhere, that attempts were made to recruit him into two strongly Hindu political movements, that he was badly beaten for refusing to join them or accused of involvement in the Gujarat train massacre or that he had received death threats. Hence the Tribunal was unable to accept that if he attempted to move elsewhere he would be targeted throughout India by Hindu parties or that the reason for his leaving New Zealand before completing his educational course was that he received threatening calls there from his antagonists.
In reaching this conclusion the Tribunal had regard to the fact that the presentation of the applicant's claims was vague and lacking in detail in several important aspects such that the Tribunal was unable to establish the relevant facts. It is worth noting that the decision of the delegate had brought to the attention of the applicant the fact that his claims as presented were broad, vague and lacking in relevant detail.
The Tribunal pointed out that the applicant had been put on notice by it that it was unable to make a favourable decision on the information before it but that he had not provided further information in support of his claims, despite the fact that in his review application he stated that a detailed submission would be filed later. Nor had he given the Tribunal the opportunity to explore aspects of his claims with him. The Tribunal set out a number of relevant questions that were left unanswered.
It had regard to country information that was contrary to his claims, to the limited information and vagueness of aspects of his claims and to the implausibility of aspects of his claims as well as the lack of detail in important respects. The Tribunal found that the applicant did not have a well-founded fear of persecution for his political or religious view or any other Convention reason if he returned to India.
The application sought review by application filed in this court on

8 October 2003. He relies on an amended application filed on

16 August 2004 which contains three grounds; first, that the decision was in breach of procedural fairness which is said to be required under section 418(3) of the Migration Act 1958 (C’th), second, that breach of the rules of natural justice occurred in connection with the making of the decision and, third, that the Tribunal took an irrelevant consideration into account and failed to take a relevant consideration into account.
Particulars 1 and 3 in the amended application appear to attempt to draw an analogy between the applicant's case and the circumstances considered by the High Court in Muin v RRT; Lie v RRT (2002) 190 ALR 601. However, the factual basis for such a claim is not established and there was no evidence before the court to support the claim that the applicant makes in that respect. The applicant has made no attempt to establish any facts similar to those agreed upon in Muin v RRT and the decision in that case does not assist him (see NADR of 2001 v MIMIA (2002) 124 FCR 465). The remaining particular in the amended application is that:
The Tribunal did not consider whether or not the Indian Government was unwilling to offer adequate protection upon my return.
However, as set out above, the Tribunal did not accept the veracity of the applicant's key claims. While it proceeded on the basis that the applicant was an ordinary member of the MIM Party, it found that being no more than an ordinary member of the MIM Party would not lead to his persecution. In these circumstances the Tribunal was not required to address expressly the question of whether the Indian Government could offer the applicant protection from persecution.
The applicant also filed written submissions on 26 April 2005 which purport to extend the grounds relied upon. The submissions address the issue of procedural fairness or natural justice in a number of ways. I have already indicated that there is no factual basis established to enable the applicant to rely on the reasoning in the Muin and Lie decisions.
The applicant did not attend the Tribunal hearing. However it is apparent from the material before the court that the Tribunal properly invited the applicant to attend by letter sent to his postal and home address and to his migration adviser. It advised him that it could not make a favourable decision on information in its possession and, indeed, he was already on notice from the delegate's decision not only that his claims were broad, vague and lacking in relevant detail but also that the delegate had not been satisfied that the claimant had given an entirely credible account of his circumstances in India, and had found aspects of his claims unsupported by independent country information. Nonetheless, the applicant declined the Tribunal's invitation to attend a hearing and provided no additional material beyond his initial protection visa application.
He told the court today that he was not feeling well on the day of the Tribunal hearing. There is no evidence before the court to support such a claim or that this was brought to the attention of the Tribunal. Indeed there is no evidence to suggest that, contrary to the response to hearing provided on 22 July 2003, he sought to attend a Tribunal hearing.
In those circumstances the applicant, declined the invitation to attend a hearing, and the opportunity to present oral arguments and evidence.

It cannot be said that the Tribunal in any way denied him procedural fairness in the manner in which it proceeded.
It is suggested in the written submission that in failing to verify documents and evidence and also in failing to give the applicant an opportunity to respond to its concerns in relation to the documents the Tribunal denied him procedural fairness. However, there were no such documents before the Tribunal. It is apparent from the protection visa application that the only documents provided by the applicant were the accompanying letter from the migration agent (apart from a certified copy of passport and passport photographs and in that respect the Tribunal proceeded on the basis that the applicant was, as his passport would have shown, and he claimed, a citizen of India.) No error is established in the manner contended. This is not a case in which the Tribunal was obliged to verify or obtain further evidence or make inquiries in relation to the applicant's claims.
It was also contended that notions of basic fairness required the Tribunal, before making a finding of dishonesty, to give the party an opportunity to address such issue. The Tribunal did not make such a finding of dishonesty, albeit that it rejected the credibility of aspects of the applicant's claims.
Moreover, and contrary to the applicant's claims, the Tribunal was not obliged, either under principles of procedural fairness or pursuant to section 424A of the Migration Act, to put its thought processes or potential findings, or its potential use of country information (in relation to which section 424A(3)(a) is applicable) to the applicant for comment.
It is apparent from the Tribunal reasons for decision that it assessed the applicant's claims as put, and that it dealt with each of his claims on the information before it. There was no unfairness apparent in its procedures or reasoning, and no jurisdictional error has been established. Accordingly, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing to warrant a departure from the general rule that an unsuccessful applicant should meet the costs of the respondent. The amount of $3,500, which is sought, is appropriate the light of the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 May 2005