SZCEO v Minister for Immigration
[2006] FMCA 330
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 330 |
| MIGRATION — Review of decision of RRT – where the Tribunal was not able to reach an adequate state of satisfaction on the information that it had before it – whether a duty to inquire may have arisen – whether the Tribunal failed to provide the applicant of particulars in writing of information that it considered was the reason, or part of the reason, for the decision. |
| Migration Act 1958 (Cth), s.422B |
| NAST v Minister for Immigration [2004] FCA 86 Minister for Immigration v SGLB [2004] 207 ALR 12 Zekiroski v Ministerfor Immigration [2004] FCA 1288 SZEEU vMinister for Immigration [2006] FCAFC 2 |
| Applicant: | SZCEO |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2759 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 February 2006 |
| Date of Last Submission: | 24 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2006 |
REPRESENTATION
Applicant in Person
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay respondents costs assessed in the sum of $5,000.
The Refugee Review Tribunal to be joined as the second respondent in these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2759 of 2003
| SZCEO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on
18 August 2002. On 6 September 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 12 November 2002 a delegate of the Minister refused to grant a protection visa and on
25 November 2002 the applicant applied for review of that decision. On 18 July 2003 the Tribunal wrote to the applicant 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 that information alone. The applicant was invited to a hearing of the Tribunal to take place on 20 October 2003. A letter was written to the applicant at the address given by the applicant as his address for service. On 8 October 2003, some 12 days before the hearing, the applicant wrote to the Tribunal telling it that he had just received the letter and stating:
“…Madam I had been out of town and have received this letter late moreover I have to be at work, which is again out of Sydney till Christmas, as the project has to be completed before Christmas. I've been working on this project otherwise I will lose my job.
Hence I request you madam to kindly postpone my hearing date. I will be highly obliged if the hearing can be done after Christmas.”
The applicant then provided the Tribunal with another address to which the Tribunal wrote on 10 October 2003 advising him that it had received his letter and that there would be no postponement of the hearing. The applicant did not attend the hearing, considering it to be more important that he attended to his work, notwithstanding that he claimed that if he was returned to India his life would be in danger and that this last chance to convince the Australian authorities that he was a person to whom Australia owed protection obligations may well be frustrated to his disadvantage.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of membership of a particular social group was his alleged membership of the Harijan class. The applicant argued in a statement submitted to the Tribunal that he had become the general secretary of an association for the welfare of low caste Hindus and had become very popular in this position. He stated that he feared persecution by Hindus of the upper class. He also stated that he feared the higher castes would wish to kill him and that he would be unable to get employment or any good status in life because of his low caste position. The applicant provided no evidence of any particular persecution which he had suffered.
The Tribunal considered the applicant's statement and also took into account certain independent country information from the UK Home Office Country Assessment for India dated April 2003. This dealt with the caste system in India and made it clear that there were problems relating to caste, although the country had taken steps to attempt to alleviate them. At CB 60 the Tribunal gave its reasons for affirming the decision of the delegate:
“The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the applicant is in genuine fear of persecution and that there is a real chance that he will be persecuted. The applicant claims that he has been discriminated against 'all his life' because he is of low caste and he fears that he will not be employed on returning to India. However the Tribunal notes that in his protection visa application the applicant lists 22 years of education and that he holds a degree and gives as his profession prior to his arrival in Australia as that of a Computer Profession. In light of these facts the Tribunal would have wished to discuss with the applicant his claimed discrimination for reasons of his caste.
The applicant also claims that he fears that he will be killed by upper caste Hindus because he has been active in promoting the cause of lower caste people. However, on the very limited, vague and unreliable evidence available, the Tribunal cannot be satisfied about the applicant's claims that he is in fact been involved in such activities and that his life is under threat because of his involvement in such activities.
Accordingly, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”
In NAST v Minister for Immigration [2004] FCA 86 Allsop said at [6-7]:
“6 My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.
7 Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.”
The situation in the instant case is similar. The Tribunal was simply unable to reach a state of satisfaction on the very limited information that it had before it. The applicant complains that the Tribunal did not investigate thoroughly enough the situation of low caste Harijans in India and he attempted to put before me some further information about them. Other information concerning their situation was contained in his written submissions.
In Minister for Immigration v SGLB [2004] 207 ALR 12 it was authoritatively confirmed by Gummow and Hayne JJ at [43] and by Callinan J at [124] that the Tribunal was not bound to make particular inquiries or obtain evidence on other matters. It has a discretion not an obligation to pursue other inquiries. There have been cases where it was considered that a failure to make inquiries constituted a breach of a duty to provide an applicant with procedural fairness and these were discussed by Finkelstein J in Zekiroski v Ministerfor Immigration [2004] FCA 1288 but I am quite satisfied that this is not one of those cases in which a duty to inquire may have arisen. To the extent that there is some vestigial duty to inquire based upon the obligation of procedural fairness there must be a concern that such a duty is now negated by the provisions of s.422B of the Migration Act.
The applicant also argued that the Tribunal had acted unfairly in declining him a postponement of the hearing until after Christmas from a date in October. The Tribunal is entitled to make its own arrangements for hearings and in the absence of any excuse other than work this court would not interfere with the discretion of the Tribunal to decline to grant an adjournment in those circumstances. As I have said the Tribunal may well have considered that if the applicant was not prepared to attend the hearing this might have indicated that he did not hold a well-founded fear of persecution upon his return to India.
I am aware of the recent decision of the Full Bench of the Federal Court in SZEEU vMinister for Immigration [2006] FCAFC 2. This decision makes it clear that the Tribunal is bound to provide an applicant with particulars in writing of any information that might be the reason or part of the reason for affirming the decision that is under review and at CB 60 in the extract from the Tribunal's decision that I have already set out there is a reference to the listing in the applicant's application of 22 years of education and a degree. I am satisfied that the reference to this document is not information that was a reason or part of the reason for the Tribunal's decision. It was referred to by the Tribunal merely as an indicator of another piece of information that the Tribunal would like to have discussed with the applicant. It may well be that if the applicant had attended and a discussion had taken place that the decision in SZEEU (supra) would have obliged the Tribunal to write a letter to the applicant but that did not occur.
In these circumstances I am unable to find any grounds upon which I could consider that the Tribunal fell into jurisdictional error in the way in which it came to its decision this case. The application is dismissed. The applicant is required to pay the respondent's costs which I assess in the sum of $5,000. The Tribunal should be joined as a second respondent.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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