SZCFI v Minister for Immigration
[2006] FMCA 337
•8 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCFI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 337 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant failing to attend RRT hearing – hearing previously adjourned twice – RRT proceeding in absence of the applicant and not satisfied that the information provided supported the grant of a visa – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 427 Migration Regulations |
| Abebe v Commonwealth (1999) 197 CLR 510 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEFM v Minister for Immigration [2006] FCA 78 SZEUZ v Minister for Immigration [2005] FMCA 967 SZFEP v Minister for Immigration [2005] FMCA 1655 SZHYI v Minister for Immigration & Anor [2006] FMCA 315 |
| Applicant: | SZCFI |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2788 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 8 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Carter Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the application.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2788 of 2003
| SZCFI |
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 3 December 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants a protection visa. There are two applicants, a husband and a wife. Only the first applicant, the applicant husband, appeared at today's hearing. I understand that he made the relevant claims. In these reasons, references to the applicant are to him. Relevant background information is contained in the Minister's written submissions filed on 21 February 2006. I adopt as background for the purposes of this judgment paragraphs 2 to 17 of the Minister's written submissions:
The applicant husband (“the applicant”) and wife arrived in Australia on 25 January 2003: court book, page 13. On 24 February 2003, the applicant lodged an application for a protection visa: court book, pages 1 to 32. On 4 March 2003, a delegate of the Minister refused to grant him a protection visa: court book, pages 33 to 42. He applied for review of that decision to the RRT on 1 April 2003: court book, pages 43 to 46.
Applicant’s background and claims
The applicant, a citizen of India, claimed that he feared harm as a supporter of the Congress Party. He claimed that members of the opposition party, the Bharatiya Janata Party (BJP) demanded money and alleged that he had not paid his income tax: court book, pages 30.6, 45 and 71.3. He was questioned in Court about his involvement with the Congress Party and his financial transactions, army officers searched his premises and the tax department raided his factory and office: court book, pages 30.7 to 31.6, 45 and 71.5. On one occasion the applicant and his wife were chased by armed thugs and during the chase the applicant collapsed and was taken to hospital. Whilst in hospital, the applicant was secretly visited by a person who threatened to kill him if he gave the attacker’s names to the police. The applicant fled from his home to stay with his aunt before travelling to Australia: court book, pages 31.8 to 32.5, 45 and 71.7.
RRT’s approach and findings
On 5 September 2003, the RRT wrote to the applicant and his authorised recipient inviting the applicant to give oral evidence and present submissions at a hearing on 27 October 2003: court book, pages 47 to 48.
On 16 October 2003, the applicant’s adviser responded by facsimile transmission to the hearing invitation indicating that the applicant wanted to attend the scheduled hearing: court book, page 49 to 50.
On 26 October 2003, the RRT received a facsimile from the applicant requesting an adjournment for medical reasons. That facsimile annexed a medical certificate dated 25 October 2003, which stated that the applicant suffered “viral illness and headache” and would be able to resume work on 28 October 2003: court book, pages 51 to 52.
On 27 October 2003, the RRT wrote to the applicant and his authorised recipient advising that the RRT had agreed to the applicant’s request to postpone the hearing and invited the applicant to a new hearing on 29 October 2003: court book, pages 54 to 55.
On 27 October 2003, the RRT had a telephone conversation with the applicant’s adviser confirming that the applicant would attend the new hearing on 29 October 2003. The applicant’s adviser indicated that the new hearing date was “fine”: court book, page 69.10.
On 28 October 2003, the RRT had a telephone conversation with the applicant to confirm his attendance at the scheduled hearing. The applicant indicated that he was having transport problems and was not feeling well enough to rely on public transport. That same day the RRT in a telephone conversation with the applicant’s adviser advised that a further medical certificate would be required: court book, page 70.1.
On 29 October 2003, the applicant’s adviser sent a letter by facsimile transmission to the RRT requesting that the hearing be postponed because the applicant was not feeling well: court book, pages 60 to 61.
On that same day, the RRT wrote to the applicant and his adviser inviting the applicant to attend a new hearing on 5 November 2003: court book, pages 58 to 59. The applicant’s adviser telephoned the RRT and confirmed that the applicant would attend the rescheduled hearing on 5 November 2003: court book, page 70.3. He also advised that the applicant did not have a medical certificate for his hearing on 29 October 2003.
On 5 November 2003, the applicant’s adviser telephoned the RRT and advised that the applicant was having car trouble and could not come to the hearing. He requested that the hearing be postponed: court book, page 70.4.
The RRT considered the request for a further adjournment. However, it refused to postpone the hearing on the basis that the applicant had already been granted an adjournment on two separate occasions due to transport problems and illness (once without a medical certificate). Given the lateness of the applicant’s request for the postponement and noting that he was required to travel from Griffith to Sydney the Tribunal also found that the applicant had ample opportunity to contact it earlier to advise of his travel problems. Accordingly, the RRT was not satisfied about the genuineness of the applicant’s reasons for requesting the postponement: court book, page 70.5. The RRT twice attempted to contact the applicant and his adviser on the telephone numbers provided for them (including the applicant’s mobile number). It left a message for the adviser requesting that he contact the RRT. No further contact was made between the RRT and the applicant or his adviser: court book, page 70.6.
The applicant failed to attend his scheduled hearing on 5 November 2003. In these circumstances, the RRT [found that it was] empowered to make its decision on the review without taking any further action to enable the applicant to appear before it: s.426A of the Migration Act 1958 (“the Migration Act”).
On 6 November 2003, the RRT made its decision affirming the decision of the delegate to refuse the applicant a protection visa and on 3 December 2003, the RRT handed down its decision: court book, pages 66 to 73.
The RRT made the following findings:
i)it found that the applicant did not provide any documentary or other evidence about his claimed links with the Congress Party, that he was investigated by the Indian authorities and was assaulted and hospitalised. Given his assertion that he was a longstanding and active supporter of a prominent political party and he claimed he would submit medical and police reports the RRT expected him to provide some documentary evidence in relation to his claims: court book, page 72.7;
ii)it found it unclear from the applicant’s written claims what motivated the people he feared to commit the claimed events. It found the essential and significant reason for the claimed threats against the applicant were criminal and not Convention related. Accordingly, it was unable to identify any Convention reason for his claimed harm: court book, pages 72.9 to 73.2;
iii)it found the applicant provided no details about when claimed events occurred. In particular, when he fled his home and went and stayed at his aunt’s place and why that did not resolve his problems: court book, page 73.3; and
iv)it found the applicant’s claim to have fled home inconsistent with information in his protection visa application, which indicated that he always resided at the same address in India: court book, page 73.4. Nor was his fear of imminent harm consistent with the fact that he did not leave India using his visitor visas to Malaysia, Singapore and Thailand in December 2002 but waited for his Australian visa to be issued the following month: court book, page 73.5.
Given the brevity and vagueness of the information submitted by the applicant the RRT was unable to establish the relevant facts and was not satisfied that he had a well founded fear of persecution: court book, page 73.6.
The applicant relies upon his amended application filed on 6 January 2005. The application was filed in response to an order by me made on 6 December 2004 calling for an amended application. The amended application is, unfortunately, in template form. It does, however, on its face raise an issue of jurisdictional error. The Minister's written submissions deal with the amended application in paragraphs 19 to 28. I agree with those submissions and adopt them for the purposes of this judgment:
The applicant has not filed an affidavit in support of his application as required by Rule 4.05(1) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) and has not filed any evidence in support of his claimed grounds of review in accordance with the orders made by consent on 20 May 2004.
The applicant filed an amended application on 6 January 2005. It is pleaded that the RRT did not take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa. The RRT came to its own view of the applicant’s claim and did not refer in its findings and reasons to the reasons for the decision of the delegate of the first respondent. Nonetheless, the applicant provides numerous particulars in support of this ground of review. To the extent that those particulars seek to challenge the findings of the RRT each will be addressed in turn.
It is pleaded that the RRT did not properly consider that the applicant was persecuted in India because of his political opinion. This ground of review merely raises issues that should have been put forward to the RRT when reviewing the merits of the applicant’s claims. It is well established that the Court cannot review the merits of the RRT’s decision[1] and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact.[2]
It is also pleaded that the RRT’s satisfaction was not based upon reasoning which provided a rational or logical foundation for its belief. There was no lack of logic or rationale in the RRT’s decision. The applicant was given the opportunity to appear before the RRT to give oral evidence, present arguments and address any concerns the RRT may have about his claims. He failed to take up that opportunity. Accordingly, the RRT considered all the claims of the applicant and was not satisfied on the basis of the lack of material before it that he had a well founded fear. That finding was open to the RRT as sole arbiter of the facts.
The applicant alleges that the RRT did not observe the Act properly while making its decision. The RRT’s initial invitation to hearing (court book, pages 47 to 48) complied with ss.425(1), 425A of the Act and reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”). The RRT hearing was twice postponed at the applicant’s instigation because he was unable to attend. The invitations to attend a new hearing did not have to comply with the notification requirements in s.425A and reg. 4.35D because the RRT was acting pursuant to its adjournment power under s.427(1)(b) of the Act.[3] Accordingly, the RRT complied with the requirements of the Act and it was entitled to proceed to make a determination pursuant to s.426A of the Act.
Notwithstanding there was no breach of ss.425 and 425A the conduct of the applicant also warrants the refusal of relief on the discretionary ground of acquiescence. Delay, waiver, acquiescence or unclean hands are all relevant matters for the Court to consider when determining whether the conduct of the applicant disentitles him to the relief sought.[4] The applicant, through his adviser, consented to the RRT conducting the hearing on 5 November 2005: court book, page 70.2. The applicant’s acquiescence in accepting the new hearing date is a further reason to refuse relief.[5]
There was no obligation pursuant to s.424A of the Act on the RRT to put to the applicant its concerns in writing about its lack of satisfaction or its rejection of his claims. Although the RRT relied upon the material in the protection visa application to deal with the review application, it was the insufficiency of that information which was the determining factor. The lack of information does not amount to “information” for the purposes of s.424A(1).[6] Furthermore, the applicant had been notified in writing of the fact that the information was inadequate and was informed that the RRT was unable to make a decision in his favour on that basis, which constituted sufficient compliance with s.424A(1).[7] In the absence of further information, it followed that the application for review would result in affirmation of the delegate’s decision to refuse the application.[8]
In similar circumstances, where an applicant failed to appear before the RRT in the face of a letter (as here) putting the applicant on notice that the RRT was not prepared to make a decision in favour of the applicant (court book, pages 48 to 49), a Full Court has described rejection of the application as the “inevitable consequence”[9] of the applicant’s non-attendance – which, as a practical matter, must be so, unless the RRT changes its evaluation of the same material already presented. He is also taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of her documents would be noted by the RRT without him having an opportunity to explain or clarify them.[10]
In any event, the applicant essentially republished his claims in his application to the RRT. He specifically invited reference to his protection visa application: court book, page 45.10.Such information falls within the exception in s.424A(3)(b) of the Act.[11]
It is pleaded that the RRT failed to consider documentary evidence provided by the applicant in claims. There is no support for this ground of review. The RRT considered the material submitted by the applicant in support of his claims, including the documents provided with his adjournment applications. No error is revealed in that approach.[12]
[1] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
[2] Abebe v Commonwealth (1999) 197 CLR 510 at [137].
[3] SZEFM v Minister for Immigration [2006] FCA 78 (14 February 2006) per Bennett J; SZDJQ v Minister for Immigration [2005] FCA 1026 per Conti J at [29].
[4] SAAP v Minister for Immigration [2005] 215 ALR 162 per McHugh J at [84].
[5] SZFIH v Minister for Immigration [2005] FMCA 1847; SZFJO v Minister for Immigration [2005] FMCA 1694; and SZGWD v Minister for Immigration [2005] FMCA 1956; SZEFM v Minister for Immigration [2006] FCA 78; SZDJQ v Minister for Immigration [2005] FCA 1026.
[6] VAF v Minister for Immigration (2004) 206 ALR 471; SZBCS v Minister for Immigration [2005] FCA 1457 at [33] (“SZBCS”); SZFEP v Minister for Immigration [2005] FMCA 1655; and SZHTI v Minister for Immigration [2006] FMCA 41 (19 January 2006) per Driver FM at [11].
[7] SZBCS per Bennett J at [16] to [18].
[8] Ibid
[9] NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
[10] S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [25]; SZBCS v Minister for Immigration [2005] FCA 1457.
[11] M55 v Minister for Immigration [2005] FCA 13 per Gray J at [25]; SZDMJ v Minister for Immigration [2005] FCA 1034 at [5] and [6]; SZFRV v Minister for Immigration & Anor [2005] FMCA 1485 (30 September 2005); SZDZQ v Minister for Immigration & Anor [2005] FMCA 1514 (13 October 2005); SZHFE v Minister for Immigration [2005] FMCA 1857 (14 December 2005); and SZBCS v Minister for Immigration [2005] FCA 1457.
[12] See SZEUZ v Minister for Immigration [2005] FMCA 967.
The applicant had not received the Minister's written submissions prior to the hearing conducted today. In the light of that I adjourned while the written submissions were read to the applicant by the Gujarati interpreter. On the resumption of the hearing I invited the applicant to make oral submissions but he did not want to make any. He likewise declined to make oral submissions following the presentation of oral submissions by Mr Carter.
Mr Carter explored in his oral submissions what he saw as the two central questions to be resolved. The first of those is whether there was any procedural unfairness in the refusal of the final adjournment request made by the applicant. The Minister's position is that there was no procedural unfairness. I agree. The history of the various adjournment requests made by or on behalf of the applicant are detailed by the RRT on pages 69 and 70 of the court book. The attempts made by the RRT to attract the applicant to a hearing ultimately proved fruitless. An adjournment is an indulgence, not a right and ultimately sufficient reason for the final adjournment request was not advanced. There was no error in the approach taken by the RRT.
The other issue raised by Mr Carter in his oral submissions concerned s.424A of the Migration Act. Mr Carter explored a question of whether a decision of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2 altered the position taken in the Minister's written submissions. He submits that it has not. I agree for the same reasons as I advanced in SZHYI v Minister for Immigration & Anor [2006] FMCA 315 at paragraphs 12 to 13.
I find that there was no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the judicial review application must be dismissed. I will so order.
I will order that the RRT be joined as the second respondent to the application.
Costs should follow the event in this case. The Minister seeks an order for costs on a party/party basis fixed in the sum of $4,250. I accept that $4,250 is an appropriate party/party assessment. The applicant did not wish to be heard on costs. I will order that the applicants pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,250.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 March 2006
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