SZBQG v Minister for Immigration
[2005] FMCA 1098
•4 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQG v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1098 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant failing to attend RRT hearing – applicant injured in an assault on the day of the hearing – RRT not informed of the applicant’s inability to attend – no jurisdictional error – application dismissed. |
| Migration Act 1958(Cth), ss.424A, 426A |
| Prasad; Minister for Immigration v Amani [1999] FCA 1040 W389/01A v Minister for Immigration [2002] FCAFC 432 |
| Applicant: | SZBQG |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2150 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 4 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms S Burnett Clayton Utz |
ORDERS
The Court directs that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2150 of 2003
| SZBQG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second 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 made on 21 August 2003 and handed down on 17 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the application a protection visa. The applicant is from India and had made claims of political persecution. The relevant background is set out in paragraphs 2-10 of written submissions prepared on behalf of the Minister. I adopt those paragraphs as background for the purposes of this judgment:
The applicant, a citizen of India, arrived in Australia on 2 April 2002.[1] On 26 April 2002 the applicant lodged an application for a protection (Class XA) visa.[2] The applicant claimed to fear persecution because of his political opinion.
[1] court book, page 69.
[2] court book, pages 1-11.
Specifically, the applicant claimed that he joined the National Congress Party ("NCP") in January 2002 and was involved in campaigns against the "BJP" and Shiv Sena, which were in power in his state as well as at the national level. The applicant claimed that:
a)he was arrested in January 2002 to prevent him attending a rally and was detained for 3 days and verbally abused;
b)in February 2002 the applicant's shop was set alight by the Shiv Sena as a result of his activities and although the matter was reported to the police they took no action;[3]
[3] court book, page 72.
c)in February 2002 there were Hindu/Muslim riots in his state and his house was attacked and he had to hide in order to save his life. His family has been continually harassed by the police and in March 2002 a falsified case was brought against him by a political member of the Shiv Sena;
d)he fears returning to India because he has offended an influential political member of the Shiv Sena by his campaigning in the election leading to political enmity.[4]
[4] court book, page 72.
The RRT’s decision
By letter dated 7 May 2003 the RRT wrote to the applicant:
a)informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone; and
b)inviting him to attend a hearing scheduled on 16 July 2003 at 9.30 am.[5]
[5] court book, page 59.
That letter was addressed to the applicant at his address for service identified in the change of address details provided by the applicant to the RRT on 20 January 2003. A copy of the letter was sent to the applicant's authorised recipient at his address for service as identified in the applicant's application for review to the RRT.[6]
[6] court book, pages 52 and 57.
By letter dated 3 July 2003, the applicant indicated that he wished to attend the hearing before the RRT.[7] However, the applicant did not appear before the RRT on the day and at the time and place at which he had been invited to appear.[8]
[7] court book, page 62.
[8] court book, pages 64 and 73.
The RRT noted that the applicant did not appear before it on the day and at the time and place at which he had been invited to appear and decided, pursuant to section 426A of the Migration Act 1958 (Cth) ("the Migration Act"), to make its decision on the review without taking any further action to enable the applicant to appear before it.[9] The RRT stated that it was the applicant's choice to forego the right to attend a hearing and give oral evidence. However, the RRT noted that it only had the information contained in the written material before it from which to make a determination and that, in those circumstances, it was difficult for the RRT to satisfy itself that the applicant had a well founded fear of persecution on return to India.[10]
The RRT stated that there remained significant matters about which it would have wished to satisfy itself at the hearing, namely:
a)the applicant's claims concerning the BJP and Shiv Sena in Maharashtra (the Applicant's home State). The RRT noted the fact that the State government of Maharashtra is the Congress Party, not the BJP, and has been since the 1999 State elections when the Congress Party defeated the ruling "BJP-Shiv Sena alliance";
b)the circumstances under which the applicant claimed to have been arrested, detained and threatened by the police and his business burnt;
c)the circumstances in which the applicant (a Hindu) claimed to have been targeted during Hindu/Muslim disturbances in Mumbai in February 2002. The RRT noted it had been unable to find any reports indicating that Hindus were targeted rather than Muslims in this overwhelmingly Hindu city and state;
d)the ability of the applicant, in any event, to avoid local problems by living outside Mumbai or Maharashtra.[11]
The RRT noted that the applicant's home State is ruled by his own party, the Congress Party, and did not accept that an active Congress Party supporter would now be targeted with impunity by local BJP or Shiv Sena activists and be unable to have recourse to the local authorities. The RRT was not satisfied that the police in Maharashtra were complacent in regard to alleged threats or attacks on the applicant.[12] The RRT was satisfied that the applicant did not face a real chance of persecution on return to India by reason of his actual or imputed political opinion.
Despite the RRT’s findings, and noting that the question of relocation did not formerly arise, the RRT considered whether the applicant could reasonably avoid any local difficulties by relocating to a different part of India and, in particular, to a state with a Congress government. The RRT noted that the applicant has a reasonable education, practical and business experience and language skills. It was satisfied that, under the circumstances, it was reasonable for the applicant to avoid any perceived difficulties in his own district by relocating within India to another Congress Party governed state.[13]
[9] court book, page 73.
[10] court book, page 73.
[11] court book, pages 73 and 74.
[12] court book, page 74.
[13] court book, pages 74 to 75.
The applicant relies upon his judicial review application filed on 14 October 2003. That application purports to set out ten grounds. They are:
1.The Applicant did receive an invitation from the Tribunal to attend an interview. The Applicant through his advisor informed the RRT that he would attend the interview, which shows the Applicant’s genuine intention to pursue his claim.
2.On the day of interview (16 July 2003) the Applicant fell sick and could not attend interview and lost an opportunity to argue his case.
3.Therefore the Tribunal failed to learn applicant’s arguments about his claim and decided the application on the basis of the information provided by the Department of Immigration in its file.
4.The Tribunal failed to take reasonable steps to obtain information from the applicant.
5.The Tribunal failed to provide further opportunity to the Applicant to argue his case in order to weigh the evidence against the reasons provided by the Department of Immigration to reach its decision.
6.The Tribunal failed to investigate the Applicant’s claim promptly, thoroughly and fairly. If the Applicant afforded a further opportunity to argue his claim the decision of the RRT could have been different.
7.The Tribunal relied upon presumptions to reach its decision in relation to the Applicant’s safe relocation within India and failed to provide reasons upon which its belief is based.
8.The Tribunal’s decision that the Applicant does not face a real chance of persecution on his return to India was based on presumptions.
9.The Tribunal failed to put adverse material upon which its decision was based to the Applicant or his advisor for their comments.
10.Subject to the above grounds the Tribunal decision is harsh and against the rules of procedural fairness and Natural Justice.
Foremost in the applicant's concerns is the fact that he lost the opportunity to attend a hearing before the RRT. This is dealt with by Ms Markovic in her written submissions in paragraphs 13 and 14:
The applicant's assertion that the RRT failed to provide the applicant with an opportunity to appear before it is without merit. The RRT invited the applicant to attend a hearing before it and the applicant responded indicating that he would attend that hearing. No notification was received from the applicant or the applicant's authorised recipient subsequent to the hearing indicating why the applicant had failed to attend or seeking another hearing date. In those circumstances, the RRT was entitled, as it did, to make its decision on the review without providing the applicant with any further opportunity to appear before it.[14]
Except in exceptional or rare circumstances, not present here, there is no duty imposed upon the RRT to make enquires or investigate an applicant's claims.[15] It is for the applicant to establish his or her claims and there is no obligation upon the RRT to obtain information from the applicant.
[14]Section 426A(1) of the Act provides that where an applicant is invited to appear before the RRT and does not appear before the RRT on the day on which, or at the time and place at which, the applicant is scheduled to appear, the RRT may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
[15] See Prasad; Minister for Immigration v Amani [1999] FCA 1040 and W389/01A v Minister for Immigration [2002] FCAFC 432.
The applicant relies upon an affidavit made on 2 August 2005 and filed on the same day. In that affidavit the applicant says that he was assaulted on the day of his RRT hearing. Annexed to his affidavit is what purports to be a medical certificate from Dr Prabhat Sinha. The document is unusual in that it is dated 16 October 2003 but purports to be a certificate of fitness between the dates of 16 July 2003 to 23 July 2003. Nevertheless, the applicant was not required to be cross‑examined on his affidavit and his evidence was unchallenged. I accept on the basis of his affidavit that the applicant was indeed injured as a result of an assault on 16 July 2003 and that that prevented him from attending the hearing offered to him by the RRT. There is, however, no evidence that the applicant's problems were made known to the RRT. The applicant told me from the bar table that he informed his then migration agent, Anil Agnihotri, of the fact that he was sick but the applicant does not know what, if anything, Mr Agnihotri did. There is no evidence that Mr Agnihotri did anything.
When the applicant failed to appear at the scheduled time for the hearing the RRT was entitled to proceed in his absence. The RRT was not put on notice prior to the making of the decision on 21 August 2003 that the applicant had been prevented from attending the hearing for any reason beyond his control. There was nothing to indicate to the RRT that a further hearing might be required. In the circumstances, there was no jurisdictional error in the RRT proceeding in the absence of hearing from the applicant to make a decision.
The applicant is also concerned that the RRT did not investigate his claims properly. He was, however, put on notice by the letter dated 7 May 2003 from the RRT that the RRT was unable to make a favourable decision on the basis of the material he had submitted[16]. The presiding member points out several times in his reasons that he would like to have had the opportunity to explore further with the applicant the detail of his claims. However, on the basis of the rather sparse material the applicant had submitted, the RRT could not be satisfied that the applicant had a well-founded fear of persecution by reason of his political opinions. That finding was open to the RRT on the material before it. There is no jurisdictional error in the decision of the RRT in that regard.
[16]court book, page 59
The applicant also asserts that there was a failure on the part of the RRT to disclose to him adverse material relied upon by the RRT. However, as Ms Burnett pointed out in her oral submissions, this assertion is misconceived. The problem confronting the applicant before the RRT was not adverse material, it was a problem of insufficiency of material. There was no breach by the RRT of s.424A of the Migration Act.
I find that the decision of the RRT is a privative clause decision. It follows that the judicial review application must be dismissed.
Costs should follow the event in this case. Ms Burnett seeks an order for costs fixed in the sum of $3,000. The Minister's total legal costs are in the vicinity of $3,800. I am satisfied that $3,000 has been reasonably and properly expended on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 August 2005
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