SZCCJ v Minister for Immigration
[2006] FMCA 162
•8 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCCJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 162 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – asserted breaches of ss.425 and 424A of the Migration Act 1958 (Cth) – no reviewable error disclosed – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 426A |
VJAF v Minister for Immigration [2005] FCAFC 178
| Applicant: | SZCCJ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2678 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 8 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2678 of 2003
| SZCCJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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 handed down on 11 November 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of religious persecution. I adopt as background paragraphs 1-5 of written submissions prepared on behalf of the Minister:
The applicant is a national of India, who arrived in Australian on 24 October 2002 and applied for a protection visa on 12 November 2002. His application was rejected by a delegate of the Minister on 12 December 2002, and on 30 December 2002 he applied for review of that decision by the RRT.[1]
The RRT handed down its decision, affirming the decision of the delegate, on 11 November 2003.[2]
In a statement accompanying his protection visa application, the applicant (who claimed to be a Muslim) made generalised claims to the effect that Muslims were not safe in India.[3] His application to the RRT asserted that the delegate did not “consider the situation under which I had to flee the country”, but did not expand on his claims. It said that he would explain his case in an interview and submit more information.[4]
The RRT made two attempts to schedule a hearing. On both occasions the applicant expressed an intention to attend, but did not do so. After the second occasion he did not contact the Tribunal to explain his failure to attend. The RRT proceeded, under s.426A of the Migration Act 1958 (Cth) (“the Migration Act”), to make a decision without taking further steps to allow the applicant to appear before it.[5]
The RRT considered country information and concluded that, while communal violence was not uncommon in India, it did not affect the majority of India’s people.[6] The RRT was prepared to accept that the applicant might at some stage have been exposed to danger from communal rioting but, in the light of the country information, did not accept that this resulted in him having a well-founded fear of persecution.[7]
[1] Relevant Documents (RD) 74.
[2] RD 73.
[3] RD 25.
[4] RD 54.
[5] RD 76.
[6] RD 80.
[7] RD 81-82.
The applicant relies upon an amended application filed on 20 July 2004. He had not prepared any written submissions nor produced any evidence in support of the application. The only evidence before me is the book of relevant documents filed on 24 May 2004.
The applicant sought an adjournment in order to obtain documents from India and also to seek legal representation. I refused that request. I took into account that the judicial review application has been on foot since 5 December 2003 and the applicant has had plenty of time to secure representation. He has also received advice under the Minister's panel advice scheme. Also, it did not appear to me that the documents he is seeking from India, which appear to relate to general circumstances in India, would assist him in establishing jurisdictional error.
The judicial review application is not particularly clear on its face but potentially raises issues concerning compliance with ss.425 and 424A of the Migration Act. The application also takes issue with the reasoning of the RRT in its decision.
In my view, the RRT complied with its obligation to invite the applicant to a hearing pursuant to s.425. The circumstances are set out in the RRT decision on page 76 of the court book. The presiding member said:
On 31 July 2003 the Tribunal wrote to the Applicant, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone[8]. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 September 2003. The letter was copied to the applicant's adviser. The Tribunal did not hear from the Applicant and the letter of invitation sent to his residential address was returned unopened. However, on 19 August 2003 the Applicant's adviser telephoned the Tribunal to confirm that the Applicant would attend the hearing and requested that an interpreter be made available. Having heard no more, the Tribunal contacted the adviser in the morning of 9 September, before the scheduled beginning of the interview, to confirm the Applicant's intentions. The adviser noted that he had had no further contact with the Applicant. The Applicant did not attend the hearing. On 10 September 2003 the Tribunal received a notification, purportedly signed by the Applicant on 9 September, of a change of address. The signature provided does not match the Applicant's signature on his application for protection, application for review or on the copy of his passport provided to the Tribunal. The signature does appear to match that of the Applicant's father, who lodged a separate application for review. Nevertheless, the Tribunal wrote again to the Applicant on 15 September 2003 with an invitation to attend a hearing on 13 October 2003. On 6 October 2003 the Applicant advised the Tribunal that he wanted to give oral evidence. However the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
[8] RD 58.
The presiding member may have been mistaken in thinking that the change of address form was signed by the applicant's father. At the hearing before me today the applicant told me from the bar table that both the change of address form and the response to hearing form were prepared by a friend. He said that he was aware of the former but not the latter. A more plausible explanation was suggested to me by Mr Kennett in his oral submissions. That is that both documents may have been signed by the applicant's authorised recipient, Salim Jivani. The signature of the authorised recipient on page 53 of the court book appears to be the same as that on the change of address form and on the response to hearing invitation form. In any event, if there was a problem, the RRT was unaware of it at the time of the second hearing. The RRT complied with its statutory obligations by communicating with the applicant through his authorised recipient. The RRT did as much as could be expected of it in order to enable the applicant to attend a hearing. When he failed to appear, the RRT was entitled to proceed in his absence.
Neither was there any breach of s.424A of this case. The RRT was prepared to accept, based upon the information provided by the applicant, that he had been caught up in communal unrest in India between Muslims and Hindus. However, that information of itself was not sufficient to support the grant of a protection visa. To the extent that the information provided by the applicant was insufficient, there was no obligation upon the RRT to disclose that insufficiency pursuant to s.424A.
It appears to me from the RRT decision that the determinative information was the country information relied upon by the RRT. That information established to the presiding member's satisfaction that the applicant's fear of persecution was not well-founded. There is no obligation on the RRT to disclose country information of the kind relied upon. I accept the Minister's written submissions contained in paragraph 9 of Mr Kennett's outline of submissions:
The only material relied upon by the RRT to contradict the applicant’s claims was the general “country information”, concerning relations between religious communities in India, to which it referred. It is established that material of that kind comes within s.424A(3)(a) and is not subject to the obligation in s.424A(1).[9]
[9] See e.g. VJAF v Minister for Immigration [2005] FCAFC 178.
No other arguable jurisdictional error is apparent to me from the available material.
I conclude that the decision of the RRT is a privative clause decision and I dismiss the judicial review application.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,200. The applicant does not wish to be heard on costs. I am satisfied that costs of not less than $4,200 have been reasonably and properly incurred 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 fixed in the sum of $4,200.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 February 2006
0
1
1