SZBUG v Minister for Immigration

[2006] FMCA 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBUG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 156

MIGRATION – Review of decision of RRT – Where the applicant sought an adjournment – where the adjournment was not granted – where the applicant alleges that the Tribunal failed to make any reference to the independent country reports available to reach its decision – where the Tribunal is exempt from the provision of s.424A by virtue of the fact that the information was of a general nature and fell within the s.424A(3)(a) exemption – whether the Tribunal failed to investigate the applicant’s claim fairly and extensively – whether this would amount to a breach of procedural fairness.

Migration Act 1958 (Cth), ss.424A(3)(b), 91A

SAAP v Minister for Immigration  [2005] 79 ALJR 1009
Minister for Immigration v Al Shamry [2001] 110 FCR 27
Seyfarth v Minister for Immigration  [2004] FCA 1713
Minister for Immigration v SGLB [2004] 207 ALR 12
SZATG v Minister for Immigration [2004] FCA 1595
VCAK of 2002 vMinister for Immigration [2004] FCA 459

Applicant: SZBUG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 2320 of 2003

Judgment of: Raphael FM

Hearing date: 2 February 2006

Date of Last Submission: 2 February 2006

Delivered at: Sydney

Delivered on: 2 February 2006

REPRESENTATION

Applicant In Person

Counsel for the Respondent: Ms K Morgan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,000.

3. Leave granted for the Refugee Review Tribunal to be joined as the second respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2230 of 2003

SZBUG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He is a Sikh. He arrived in Australia on 30 April 2002.  On 11 June 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 15 October 2002 a delegate of the Minister refused to grant a protection visa and on 8 November 2002 the applicant applied for review of that decision.  The Tribunal caused a hearing to be held at which the applicant appeared on

   
   

   10 September 2003.  On 11 September 2003 the Tribunal determined to affirm the decision not to grant a protection visa.  The Tribunal handed that decision down on 7 October 2003.  On 31 October 2003 the applicant through a firm of solicitors lodged an application seeking judicial review of the decision of the Tribunal in this court.

2. A directions hearing was held on 17 March 2004 at which the applicant was represented by a solicitor.  One of the orders made by the Registrar on that day was that the applicant file and serve any amended application and any evidence upon which he proposed to rely by

   
   

   26 May 2004.  That order was not complied with and no amended application has been filed.  On 31 January the court received through the fax a notice of ceasing to act from those solicitors.  Those solicitors were obliged under the terms of the orders of the Registrar to have filed submissions relating to those proceedings five days before today which would have been prior to 31 January 2006.

3. Today the applicant appeared before me and sought an adjournment.  He told me that he had a serious car accident in September 2005 and produced to the court a letter written by the North Sydney Health Service at the Royal North Shore Hospital to the visa office of the High Commission of Australia in New Delhi.  I am satisfied from that letter that the applicant did indeed have a serious car accident and was in intensive care at the time the letter was written.  I asked the applicant when he was discharged from hospital.  He told me it was some time last month (January) or the month before (December 2005).  He was unable to tell me exactly when he was discharged.  He told me that he had been unemployed and therefore could not pay his lawyer and that was why the lawyer resigned from the case. The applicant did not provide me with any assistance as to why having a lawyer would improve his prospects of success or more importantly how he proposed to fund the employment of a lawyer if any adjournment was granted.

4. In considering whether or not to give an adjournment I have borne in mind the very long delay that has already occurred since the issue of the decision of the Tribunal and the fact that the applicant did have a lawyer but that lawyer had produced nothing by way of submissions or an amended application to advance his client's case, and my reading of the decision itself.  For reasons which I am about to deliver I do not consider that the applicant's prospects for success were any more than minimal with or without the benefit of legal representation.  I am satisfied that it is not in the interests of justice to grant the adjournment.

5. The applicant told the Tribunal that he had been a clerical public servant in the PSEB which is the Electricity Board of the Punjab State.  He joined the Board in 1969 and remained with it until his retirement in April 2000.  He had always lived in the same town in the Punjab save for a period of six months in 1974 and another six months in 1982.  The Tribunal accepted that the applicant was a trade unionist who had had some problems during the course of his employment and possibly even had false charges brought against him.  The Tribunal says in its decision at [CB 91]:

   “The applicant claims to have been an active trade unionist during the period of his employment with the Punjabi State Electricity Board (PESB).  I accept that this is the case.  I accept that the applicant encountered some difficulties during his employment because of his involvement in trade union activities.  I accept he was harassed, that he was transferred and that on two occasions false charges were brought against him.

   However, according to the applicant's protection visa application, each time he was falsely accused he was released because the charges against him were not proved.  In his protection visa application the applicant also indicated that at least on one occasion when he was transferred the union intervened and arranged for him to return to his original place of employment. On the applicant's evidence he worked for the PSEB for some thirty-one years.  Over this period he was promoted on three occasions ... he is in receipt of a pension.”

6. The applicant produced for the Tribunal a letter from a lawyer and some court documents.  The letter from the lawyer, dated 4 August 2003, makes reference to the applicant's parents being harassed. But the applicant told the Tribunal that his mother died in 2000 and his father had died in 1994.  The Tribunal also criticised the court documents at [CB 95].  For the reasons there given the Tribunal came to the view that those documents were not genuine and that the applicant did not have any charges hanging over his head if he returned to India. These documents were both produced for the purposes of the Tribunal not for the Delegate.  They were produced by the applicant.

   
   

   I am satisfied they are documents which come within the exemption found at s.424A(3)(b) of the Migration Act 1958 (Cth) (“the Act”).

7. At [CB 91] the Tribunal comes to the conclusion that the alleged persecution suffered by the applicant during the course of his employment did not constitute serious harm for the purposes of s.91 R of the Act. At [CB 92] the Tribunal concludes that the applicant does not have any well-founded fear of any future persecution because he had remained in his town after he retired in 2000 and took no steps to remove himself from the source of the harm he feared.

   At [CB 92] the Tribunal says:

   “The applicant claims that he still faces false charges in India.  In relation to this claim the applicant's protection visa application does not suggest that he had been convicted of any charges or that he had any matters on foot in the courts.  His application for a protection visa specifically indicates that the applicant has never been convicted of any offence. In the application for a protection visa the applicant also indicates that on the two occasions he had been faced with charges he was released because state union officials intervened and they were banned because there was no evidence against him. The applicant sought to explain the inconsistency in his evidence by stating that the orders convicting him were not operational because he had appealed his conviction.  I do not consider that the applicant's evidence in this regard satisfactorily explains the inconsistency in his evidence.”

8. To the extent that it might be argued that the information referred to in that paragraph was information that was required by a combination of the decisions in SAAP v Minister for Immigration [2005] 79 ALJR 1009 and Minister for Immigration v Al Shamry [2001] 110 FCR 27 to be provided to the applicant in a written form., the respondent argues that this information was not information which was the reason for affirming the decision under review. It seems to me that, consistent with the views expressed by Lindgren J in SZEKY v Minister for Immigration [2005] FCA 1138, it is not the statement made in the application that is the reason or part of the reason for the decision but the inconsistency between that statement and other evidence provided by the applicant influenced the Tribunal not to accept the evidence.

9. The "grounds of appeal" found in the application to this court are five-fold. The first is that the Tribunal failed to make any reference to the independent country reports available to reach its decision. The independent country information utilised by the Tribunal is contained within the court books. It can be readily seen that it is information exempted from the provisions of s.424A by s.424A(3)(a) of the Act being information of a general nature. Because of this exemption it cannot be said that the Tribunal had any obligation to afford the applicant an opportunity to make submissions on adverse information contained in those reports, used against him, which was the second ground of appeal.

10. The third ground complains that the Tribunal failed to investigate the matter fairly and extensively and therefore failed to comply with the rules of procedural fairness.  There are problems with that complaint.  As Hely J pointed out in Seyfarth v Minister for Immigration [2004] FCA 1713 at [95]:

    “There is no general obligation on the Minister to make his own inquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister:  Lorenzo v The Minister [2004] FCA 435 at [45], [51] [Hill J].”

    Other cases which confirm the very limited extent to which there is a duty to inquire are Minister for Immigration v SGLB [2004] 207 ALR 12 at [43] per Gummow and Hayne JJ and at [124] per Callinan J, and SZATG v Minister for Immigration [2004] FCA 1595 at [22]. In VCAK of 2002 vMinister for Immigration [2004] FCA 459 at [27] Crennan J said:

    “The fact that the Tribunal did not use enabling provisions like section 424 (to seek additional information) and 427(1)(d) (to make further inquiries) does not indicate any error of law on its part.”

11. The other problem is that the rules of procedural fairness in this applicant's case have been severely restricted by the insertion into the Act of s.422B. The existence of this section also deals with grounds of appeal 4 and 5 the first of which states that the decision is harsh and against the rules of procedural fairness and the second of which says that the applicant was denied natural justice.

12. In all the circumstances I am satisfied that this decision of the Tribunal cannot be impugned because of jurisdictional error and the application must be dismissed.  I dismiss the application and order that the applicant pay the respondent's costs assessed in the sum of $4000.

    
    

    I grant leave for the Refugee Review Tribunal to be joined as the second respondent to these proceedings.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  9 February 2006