SZCCX v Minister for Immigration

[2006] FMCA 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCCX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 509

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

Migration Act 1958 (Cth), ss.422B, 424A & 425

Minister for Immigration & Multicultural & Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
Abebe v Commonwealth (1999) 197 CLR 510
SZEFM vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78

Applicant: SZCCX & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2694 of 2003

Judgment of: Barnes FM

Hearing date: 6 April 2006

Delivered at: Sydney

Delivered on: 6 April 2006

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2694 of 2003

SZCCX & SZCCY

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 18 November 2003 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.  The applicants are husband and wife and citizens of India.  No specific Convention claims were made by or on behalf of the applicant wife and, for convenience, future references to the applicant are references to the first applicant, the applicant husband. 

2. The applicants arrived in Australia in February 2003 and applied for protection visas.  The application was refused and the applicants sought review by the Tribunal.  In the review application the applicant stated:  “Please refer to the above [Departmental] file” and advised that a detailed submission would be filed later.  The applicant claimed that he was a Hindu and an active member of the Congress Party in Gujarat in India.  He had strongly condemned the incident of the Gujarat train tragedy and subsequent communal violence.  The applicant claimed that he assisted victims of this incident and the aftermath and that he arranged rallies against the culprits and the BJP government.  He claimed that as a result he became a target of extremists of the BJP and RSS and other political parties, that he received threatening phone calls telling him to leave the Congress Party and that his office was set on fire by extremists of the BJP, RSS and other Muslim groups.  He reported this to the police but no action was taken.  He claimed that in the last state elections he had supported the local Congress Party candidate.  The BJP won the election overall.  However he claimed that he was targeted by extremists who attacked and beat him so severely his arm was broken and he was hospitalised.  He claimed that threats against his life continued and that neither the police nor the government helped him, so he and his wife left India. 

3. It is relevant to note that in the application for review the applicant provided a New South Wales home address but also nominated an authorised recipient to receive correspondence and act on his behalf.  On 16 September 2003 the Tribunal wrote to the applicant at two Queensland addresses (including a post office box number) and also sent a copy of the letter to his authorised recipient, a migration agent, inviting him to attend a Tribunal hearing.  The letter advised that if the applicant did not attend the Tribunal hearing and the Tribunal did not postpone it, it could make a decision on the applicant’s case without further notice.  The material before the court does not include any notification of change of address for the applicant but I note that the post office box in Queensland is the applicant’s address notified in the subsequent response to hearing invitation.

4. Relevantly however the letter was also sent to the applicant's authorised recipient, his migration agent (see ss.441A, 441C and 441G(1) of the Migration Act 1958 (Cth)) and hence is taken to have been given to the applicant (s.441G(2)). Moreover, the Tribunal received a signed response to hearing invitation indicating that the applicant did not want to come to a hearing and consenting to the Tribunal proceeding to make a decision on the review without taking further action to allow or enable him or his wife to appear before it. In its reasons for decision the Tribunal referred to this response and indicated that it had therefore determined the matter on the evidence available to it.

5. The Tribunal summarised the applicant's claims and referred to independent country information in relation to the situation in Gujarat in India.  However, it found that the applicant's claims lacked detail, “making it difficult for the Tribunal to establish the relevant facts”. 

   
   

   It referred to the train tragedy in Gujarat to which the applicant referred and the wave of communal violence that subsequently engulfed the city.  It found it plausible that the loss of the applicant's office in a fire was part of that general pattern of destruction rather than a single instance of harm directed specifically at the applicant.  The Tribunal was also prepared to accept that the applicant lost his business premises and suffered financial losses during this period of communal violence in 2002.  However, it could not be satisfied on the evidence before it that the applicant personally attracted the enmity of BJP and RSS extremists who threatened his life.  It had regard to independent evidence about Gujarat from which it would seem that the enmity of the BJP and RSS extremists was directed squarely at Muslims, not fellow Hindus like the applicant.  Even if the applicant did criticise the BJP government, the Tribunal found that as but one of many critics at the time, it was implausible that the applicant would be sought out by extremists of the BJP and RSS to receive death threats and have his arm broken.

6. The Tribunal had regard to the absence of detail from the applicant as to why he should be targeted, the lack of detail as to the alleged harm which befell him or as to what had happened to the rest of his family or details about the alleged lack of assistance from the police (despite independent evidence indicating that the police in Gujarat were extremely partisan in assisting Hindus).  The Tribunal also observed that while the applicant had stated that relocation was not a solution, he had not explained why this was the case in circumstances where it appeared to be a viable option for a person who was self-employed, had business interests in four states, spoke Hindi and found a BJP government distasteful.  Ultimately, on the basis of the evidence before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution

7. The applicant sought review of the Tribunal decision.  He relies on a further amended application filed on 20 January 2005.  That further amended application is expressed to contain one ground: that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.  However the application contains a number of particulars which do not relate clearly to such a ground, but rather raise a variety of matters which I have considered.

8. It was contended first that the Tribunal did not properly consider the chance of the applicant's persecution on return to India based on his membership of the Congress Party.  The applicant’s claim to fear persecution because of his political opinion was reiterated.  This repetition of the applicant's claims does not establish jurisdictional error.  The Tribunal considered the applicant's claim to fear harm because of his association with and as a member of the Congress Party insofar as possible on the material before it, but was not satisfied that the applicant had a well-founded fear of persecution.  It noted the absence of detail as to why the applicant should be targeted, having only indicated that he was a supporter of a political party which was the major opposition party in the state. 

9. No jurisdictional error is established because the facts that were put forward by the applicant did not lead the Tribunal to be satisfied that the applicable criteria were satisfied: see Minister for Immigration & Multicultural & Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73 and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215. I note that in similar circumstances, where an applicant declined to appear before a Tribunal in the face of a letter putting him on notice and the Tribunal was not prepared to make a decision in his favour, the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] described rejection of the application as the “inevitable consequence” of the applicant's non-attendance. 

10. The applicant also contended that he had no documentary evidence to establish his persecution and that he “did not attend the Tribunal to give my oral evidence because I fail to collect documentary evidence from India”.  It is for an applicant to advance whatever evidence and arguments he wishes to put before the Tribunal and for the Tribunal to decide whether his claims have been made out: Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. It is not the duty of the Tribunal as decision-maker to make the applicant's case for him. The applicant's contention that he had no-one to help him to collect documents does not establish a jurisdictional error on the part of the Tribunal. Nor does his decision not to attend the Tribunal hearing.

11. The general contention that the Tribunal's satisfaction was not based on reasoning which provided a rational or logical foundation for this belief is not established. No lack of logic or rationality in the Tribunal's decision is apparent. Nor is any breach of the Migration Act established as contended. The applicant was given the opportunity to appear before the Tribunal to give oral evidence, present arguments and address concerns the Tribunal may have had about his claims. There is no suggestion that he was not informed of the invitation to the Tribunal hearing, although he now claims that he did not understand the consequences if he did not attend and did not understand the hearing procedure. It is apparent from the material before the Court that the applicant had the assistance of a migration agent. The Tribunal complied with its obligations under the Act and the Regulations to invite the applicant to a Tribunal hearing and advised the applicant by letter sent to his authorised recipient that if he did not attend the hearing and the Tribunal did not postpone it, the Tribunal could make a decision on his case without further notice. The applicant declined to attend the hearing and there is no evidence that he sought an adjournment. No jurisdictional error is apparent on the part of the Tribunal in this respect.

12. The claim that the Tribunal failed to consider the applicant’s documentary evidence in the way provided under the Migration Act is not made out. No documentary evidence other than the protection visa application and accompanying letter was submitted. This material was considered. It was also contended that the Tribunal did not provide the applicant with adequate particulars of independent information in the decision or an opportunity to comment. Insofar as this involves a contention that there was a failure to comply with s.424A of the Act, the independent country information would fall within the exception in s.424A(3)(a). Having indicated that he did not wish to attend a Tribunal hearing, the applicant cannot complain of a denial of procedural fairness in relation to such information, whatever the effect of s.422B of the Migration Act 1958.  Once the applicant declined to attend a Tribunal hearing, the Tribunal was entitled to proceed to make a determination pursuant to s.425(2)(b) of the Act. 

13. More generally, in relation to s.424A, the reason for the Tribunal's decision related to the lack of detail in the applicant's claims and his failure to attend the Tribunal hearing to assist it to establish the relevant facts. Such matters are matters of “evaluative reasoning” and thought processes (see SZECI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1201 per Allsop J at [24]) . The circumstances of this case do not establish a failure to comply with s.424A(1).

14. Moreover, in the Tribunal application for review, the applicant refers specifically to his Departmental file. He did not submit any new claims to the Tribunal. He indicated that he did not wish to attend the Tribunal hearing and, in those circumstances, must be taken as relying on his protection visa claims before the Tribunal and hence to have given such claims to the Tribunal within s.424A(3)(b): see SZEFM vMinister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [19].

15. The applicant also took issue with what country information established in relation to the situation in India, claiming that the Tribunal found that the totality of the information did not show that Congress Party politicians were safe in India.  It is not entirely clear what the applicant is alleging in this instance, but the Tribunal did not find that the country information indicated that Congress Party politicians were not safe in India.  Rather it observed that there were many critics of the BJP and no details as to why the applicant should be targeted and in relation to the absence of detail as to why relocation was claimed not to be a solution, noted that Gujarat was one of the few states governed by the BJP.  More generally, the weight to be given to particular items of country information is a matter for the Tribunal.

16. The claims made by the applicant in the further amended application do not establish jurisdictional error on the part of the Tribunal.  In oral submissions the applicant claimed that whoever he trusted did not give him the right information and it was his mistake that he did not go to the Tribunal hearing.  He sought more time and also the opportunity to put his claims to the Court.  However, as I explained to the applicant, this is not a rehearing and insofar as he seeks merits review, merits review is not available in this Court.  As no jurisdictional error has been established the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The first respondent seeks that the applicant pay costs in the sum of $4,000.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent, and the amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 April 2006.