SZCGM v Minister for Immigration - [2005] FMCA 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGM v MINISTER FOR IMMIGRATION

[2005] FMCA 151

MIGRATION – RRT decision – Mumbai Congress Party member – did not attend Tribunal hearing – no error identified.

Migration Act1958 (Cth), ss.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZCGM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2840 of 2003

Delivered on:

7 February 2005

Delivered at:

Sydney

Hearing date:

7 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms N McLoughlin

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $2,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2840 of 2003

SZCGM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth) challenging a decision of the Refugee Review Tribunal dated

|29 October 2003 and handed down on 25 November 2003. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa.
Section 483A of the Migration Act gives the court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act." The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As construed in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, those limitations require the court to be satisfied that a jurisdictional error vitiated the decision or proceedings of the Tribunal before the court can set aside its decision and send the case back to the Tribunal for a further hearing.
In the present case, the applicant arrived in Australia on 1 February 2003 on a three month study visa. He applied for a protection visa on 13 February 2003. Attached to his protection visa application was a short statement narrating circumstances which had occurred in India which he claimed caused him to fear persecution if he returned. The Tribunal in its reasons has in my opinion adequately summarised the claims he made in that document as follows:
The applicant's claims are on a separate typewritten sheet attached to the protection visa application. He claims that he joined the Congress Party in 1997 and has been an active member since that time, rising to the position of vice-president of his local branch. There are a number of different political parties in his area but the MLA is of the BJP party: he has won three successive elections. The applicant, in his capacity as a Congress Party activist, used to attend and even organise political functions including rallies which voiced opposition to the BJP and Shiv Sena.
The applicant states that on 26 October 2002 he met the Congress Party MLA (sic) at a public meeting and on the same day there was a big function and a BJP meeting scheduled for the evening. The applicant claimed that there was abuse hurled between supporters of the BJP and Congress and that this was reported to the police. The police subsequently visited the applicant at home but “because of our party’s influence did not take any action against me”. However, from that time, the police began giving the applicant trouble and questioning him now and then, which forced him to close his shop.
The applicant then claimed, confusingly, that “the Congress used their supporters and they threw stones at my shop and a lot of business goods were damaged”. The applicant then claimed protection from the court from “unnecessary police interventions” and he promised the court he would appear at the police station on 8 November 2002. The applicant kept that appointment, accompanied by senior members of his party, only to be locked up by the police because the senior police officer alleged that the local MLA had been threatened by the applicant. The applicant’s political comrades approached the magistrate and secured the applicant’s release on the grounds of insufficient evidence.
However, the police started to come to the applicant’s house and demand money, which he refused to pay, and the police then made threats against the applicant to his family members. On 25 November 2002 there was a knock on the door about 10 pm and the applicant found it was the police, ordering him to go to the local police station for some inquiry. He gave them some money to go away and said he would leave the place on the next morning. He went to New Delhi and stayed there for sometime. On 20 January 2003 he made up his mind” to leave for a little while [and] went to another which is far away from my home”. He then thought of seeking refuge in an unknown place where he could not be traced.
The applicant submitted no supporting material to the delegate, and the delegate on 21 February 2003 refused a visa. In the statement of reasons given to the applicant, the delegate pointed to a number of concerns about his claims. These included: the absence of evidence of his political involvement in the Congress Party; the absence of details about the activities he had described; and some inconsistencies in his account when compared to other details he had given in his application form. The delegate said that he did not consider it plausible that the applicant had been in hiding or had relocated, given evidence that he had resided in Mumbai all his life running a business until he left India in 2003.
The applicant appealed to the Refugee Review Tribunal on 27 May 2003 assisted by a migration agent who he nominated as an authorised recipient for correspondence. He provided no further material in support of his refugee claim, but said in his application: "I am deeply aggrieved by the decision made by the case officer of the Department of Immigration and Multi‑Cultural affairs. Please consider my application favourably. Thank you."
On 16 September 2003 the Tribunal wrote to the applicant at his mailing address, his residential address and to his agent informing the applicant: "The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone." The Tribunal invited the applicant to a hearing "to give oral evidence and present arguments in support of your claims." The letter informed the applicant: "If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice."
The letter nominated the time of 24 October 2003 for the hearing date. On 1 October 2003 a "Response to Hearing Invitation" form was returned to the Tribunal by the applicant's agent signed by the applicant himself. As completed, the form said "I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it."
The Tribunal proceeded accordingly. In its findings and reasons, the Tribunal says that the applicant's claims as set out in his original visa application were difficult to follow and seemed confused at various points. The Tribunal says that it was unable to fully comprehend the applicant's claims about the sequence of events involving stone throwing and his shop, where he seemed to indicate that the culprits were either Congress supporters or alternatively the police.
The Tribunal said: "In any case, the Tribunal notes the applicant was able to apply for judicial intervention; and that his unfortunate detention was both short lived and able to be reversed by a magistrate, indicating that the rule of law was operating." The Tribunal then addressed a concern that it thought was in the claim concerning police corruption. It understood the applicant to have suggested that he decided to leave after receiving demands for money, but it noted that the applicant had received a visitor's visa to Australia before these events.
The Tribunal concluded:
The Tribunal notes that the applicant has not claimed to have been involved in anything more serious than verbal abuse with his political opponents. His claims about adverse treatment he has suffered encompass some stones thrown at his shop and an overnight detention. The Tribunal is not of the view that even cumulatively these incidents amount to serious harm that can be called persecution. The Tribunal notes that the applicant's own party, the Congress Party, is the governing party in Maharashtra State and finds it implausible that he would face persecution there for reason of his political opinion.
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.
The applicant's application to this court filed on 22 December 2003 has ten paragraphs listed under "The Grounds of the Application". These allege matters which have no substance or relevance to the applicant's case, insofar as I can understand them in the absence of any particulars. There are allegations of bad faith; deprivation of natural justice; denial of evidentiary proofs given in his claim; an assertion that the Tribunal's decision did not reflect the material facts of his claim; an assertion that the Tribunal made a decision which was "pre‑set in the back of its mind"; an assertion that the Tribunal mixed up many facts with this decision which affected the decision; and an assertion that the Tribunal ignored facts and made up its mind without any inquiry regarding his claim.
As I have indicated, there is no substance in any of these. The real situation was that the applicant made a short claim in his protection visa which he never attempted to substantiate. He presented no further information to the Tribunal, nor did he present himself to the Tribunal when given notice that the Tribunal could not decide his case on the papers. The Tribunal has, in my opinion, addressed all the claims he made and has done so in a lawful and proper fashion. I can find no jurisdictional error affecting its decision.
The applicant was directed at the first hearing date in this court to file and serve an amended application giving particulars of his grounds of review. On 25 October 2004 he filed a document headed "Amended Application". This is handwritten. In it the applicant says:
I have enclosed my party’s Id and invitation letter, courts order/hearing.
I know my case is confused but I need to show my well founded fear regarding my opposite party and police in my area. So if I go back to my city then police and opposition party will make harassment for me and they will try to create hassles in my all activities. So I just want to get rid of all this difficulties and fear. I urge to magistrate consider my application fairly. Even my comrades will not support me. So if I would back them surely I will be punished and harassed. I was not financially strong for my judicial intervention or legal assistance in India so kindly justify with me.
Plainly, the plea set out in this document did not identify a legal error in the Tribunal's proceedings but constitutes a plea for the court to decide his refugee status. However, as I have explained to the applicant today, the court does not have power to decide whether he is a refugee. That is a matter for the Tribunal only.
Attached to the amended application were documents purporting to verify the applicant’s membership of the Indian National Congress, and a three page document purporting to be a record of a court of sessions at Mumbai on 5 November 2002, in which the judge gives reasons for dealing with a complaint that the applicant was involved in disrupting a BJP party gathering. The judge ordered that the applicant should be released and should present himself at the police station on

8 November 2002. I do not need to consider these documents further since it is clear that they were not put before the Tribunal and the applicant does not claim that they were. He wants a new opportunity to put those documents before the Tribunal. However, as I have indicated, he was given an opportunity to do this in the past and did not take it.
The respondent sought to have the applicant's application summarily dismissed due to its failure to provide of particulars of a ground of judicial review. I held a directions hearing on 10 January 2005 at the respondent's request, where I declined to dismiss the application, and gave the applicant a further opportunity to put forward and prepare his argument.
He has recently filed a document headed "Outline of Applicant's Submissions", and I have considered the matters he has raised in it.
At the start of the document, the applicant appears to explain that he did not attend the hearing before the Tribunal because he was waiting for documentary evidence. He says "It is relevant that I am waiting for documentary evidence without the supporting documentary evidence I am not prepared to attend the RRT hearing to provide my oral evidence to support my review application." Although this statement has not been verified, I am prepared to accept it as true. However, the applicant does not claim that either he or his advisors sought an adjournment of the hearing to which he was invited, and he has not put forward any basis to me on which I could find that there was a denial of procedural fairness on the part of the Tribunal when it decided to proceed to make a decision in the manner which it did.
The “outline of submission” then makes allegations that the Tribunal's decision was made in bad faith and that the Tribunal did not investigate his claims. There is no substance to these allegations and I reject them.
Complaints are then made that the Tribunal should have discussed his claims with the applicant and should have investigated further. However, as I have indicated, the Tribunal gave the applicant the opportunity to attend a hearing, and it acted according to the principles of procedural fairness and with the authority given by s.426A of the Migration Act when deciding to make a decision without taking further action to allow or enable the applicant to appear before it. As I have indicated, the applicant was given full warning, as was his agent, that this was a course which the Tribunal could take if he did not attend the hearing.
The remainder of the “outline of submissions” comprises a “cut and paste” of irrelevant paragraphs which the court has seen before. There is the proposition: "the grounds and relief is very much similar with a High Court judgment, ‑ Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30." However, reference to Muin's case has no relevance in the present case, since the Tribunal has not made any reference to foreign country information, but has assessed the applicant's claims on their merits as presented. There is then some inconclusive and garbled statements about the law concerning privative clause jurisprudence. I cannot find any proposition in it that has a bearing on the present case and which I should address.
The applicant has attended today and has been assisted with an interpreter, but, when invited to make oral submissions to expand upon his written submissions, he said that he had no further submissions to make to me. In those circumstances, I did not feel it necessary to call upon the Minister’s representative to make submissions.
In my view, the applicant has failed to make out any ground of jurisdictional error affecting the Tribunal's decision and I dismiss his application.

RECORDED : NOT TRANSCRIBED

The applicant should pay the respondent's costs in the sum of $2,250.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 23 February 2005