SZCIL v Minister for Immigration - [2005] FMCA 1174

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIL v MINISTER FOR IMMIGRATION

[2005] FMCA 1174

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

Migration Act 1958, ss.424A, 426A & 474

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant:

SZCIL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2915 of 2003

Judgment of:

Barnes FM

Hearing date:

17 August 2005

Delivered at:

Sydney

Delivered on:

17 August 2005

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr A McInerney

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2915 of 2003

SZCIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 December 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in March 2003. He applied for a protection visa. The application was refused and he sought review by the Tribunal on 23 June 2003 reiterating his claims. On 24 June 2003 the Tribunal wrote to the applicant and to his nominated authorised recipient acknowledging receipt of the application, requesting further relevant information and foreshadowing that he may be invited to attend a hearing.
On 10 September 2003 the Tribunal wrote again to the applicant and to his authorised recipient or migration agent at the address as provided in the review application advising that it considered all the material before it relating to the application, but that it was unable to make a decision in the applicant's favour on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 November 2003. Included in the letter was a notification to the applicant that if he thought he might be unable to attend the hearing, he must contact the Tribunal immediately. If he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.
On 4 October 2003, the applicant completed a response to hearing invitation form, in which he advised that he wished to attend the hearing. However, the Tribunal reasons for decision record that the applicant did not attend the hearing scheduled for 4 November 2003. Nor did he contact the Tribunal to explain his failure to attend. In those circumstances, pursuant to section 426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant had claimed in connection with his application for a protection visa to fear persecution in India first on the basis of his political opinion, as an active member of the Muslim League in Secunderabad and that he had been assaulted and threatened by political opponents in the ruling TDP Party. He claimed to fear that he would suffer similar harm in the future for the same reason. He also claimed to fear persecution for religious reasons, claiming that as a Muslim he lived in fear of getting killed in communal violence.
In its reasons for decision the Tribunal outlined relevant country information. It considered each of the applicant's claims and addressed them in the findings and reasons part of its decision. It was not satisfied on the material before it that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. It found that the applicant had presented his claims poorly. He had not indicated clearly which Muslim political group he was involved in Secunderabad. He had not provided meaningful details of the conflict he had with the TDP or the circumstances which led to the attack in 2002, or explained clearly the harm he anticipated or under which circumstances he feared harm in the future. Nor had he indicated if he continued to be involved with any political group in India or if he intended to participate in political activities in the future.
Nonetheless the Tribunal considered the applicant's broad claims. It accepted his claim that he had been attacked by TDP political opponents in Secunderabad in December 2002 as consistent with independent information to which it referred, indicating that violence between political opponents in Hyderabad and Secunderabad was common, particularly during elections.
However, the applicant had claimed that he was attacked because he was an active member with the party and the Tribunal was not satisfied on the evidence before it ‘that the same conditions apply’. It stated that it did not have any evidence from the applicant to indicate that he was currently involved in political activities, or that he intended to be involved in such activities in the reasonably foreseeable future. Having regard to this lack of evidence, it found that the applicant did not have a well-founded fear of persecution in India for reasons of political opinion.
The Tribunal also considered the applicant's claims about communal violence between Hindus and Muslims, accepting that such violence was an ongoing problem in India, but finding that there were many states where Muslims could live safely albeit that there had been communal violence in Hyderabad where the applicant had lived and also in Mumbai, the applicant's other home in India. The Tribunal was satisfied that the applicant could avoid the harm he anticipated in those cities, by relocating elsewhere in India. In reaching this finding, it had regard to the decision of the Full Court in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 and was satisfied the applicant had the skills, knowledge and ability to relocate in India. Furthermore the Tribunal was not satisfied by the evidence before it, that Muslims in India suffered discrimination of such nature or extent as to constitute persecution for Convention purposes.
The Tribunal concluded by observing that the applicant had been put on notice that it was not satisfied by the evidence that he had provided in support of his application, had not provided further information despite the opportunity to do so or given the Tribunal an opportunity to explore his claims at a hearing and that many questions regarding his previous and future circumstances remained unanswered. In the absence of further information, it did not accept that the applicant had a well founded fear of persecution in India for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this court on 30 December 2003. He filed an amended application on 29 April 2004 which relies on the original grounds and adds an additional ground.
The grounds raised in each of these documents are expressed in general and unparticularised form. Asked if he wished to elaborate on these claims, all that the applicant said in oral submissions was that he wished the matter to be remitted to the Tribunal and that if he returned to India he would have problems. Insofar as he claims that he would have problems, he seeks merits review, which is not available in this court.
He also suggested that his lawyer knew all about the matter, but in fact he is self represented and there is no indication that he has any lawyer acting for him in these proceedings.
The first ground relied upon is that there was a breach of the rules of natural justice. No such breach is apparent on the material before the Court. In particular, as set out above, the Tribunal properly notified the applicant of his opportunity to attend a hearing. He responded that he would attend. He did not contact the Tribunal to explain his failure to attend. In those circumstances, it was open to the Tribunal to proceed as it did pursuant to section 426A of the Migration Act 1958 to make a decision on the review without taking any further action to enable the applicant to appear before it. No breach of the rules of natural justice is apparent, nor is there anything to establish the claim in paragraph (c) of the original application that the procedures required by law to be observed were not observed. In particular the procedures in Division 4 of Part 7 of the Migration Act 1958 in relation to an invitation to a hearing have not been shown not to have been satisfied in any respect.
The general complaints that the decision involved an error of law, was an improper exercise of power or otherwise contrary to law, are not established.
The Tribunal made two significant adverse findings of fact in respect of the applicant's claim and its findings were open to it on the material before it. It dealt with his claims in relation to political opinion and religion and while accepting his claim that he had been attacked in the past by political opponents, in absence of the evidence of current involvement in political activities or any intention to be involved in such activities in the reasonably foreseeable future, found that he did not have a well founded fear of persecution in India for reasons of his political opinion.
It dealt also with his claims in relation to fearing violence between Hindus and Muslims in its findings on relocation. Insofar as possible on the evidence before it, it gave consideration to the practical realities of the applicant's situation, in being satisfied that he had the skills, knowledge and ability to relocate. No error is established in the manner in which the Tribunal made such findings.
It is also claimed that there was no evidence or other material to justify the making of the decision. Again, no error is established in the manner contended. Given the failure of the applicant to attend the Tribunal hearing, it was open to the Tribunal to proceed to make a decision on the information before it. It had regard to such claims as he had made and to independent information, which provided a basis on which the findings that it made were open to it.
Finally, in the amended application, the applicant claims generally without particularisation that the Tribunal failed to give him information it considered would be the reason, or part of the reason for affirming the decision under review contrary to section 424A(1) of the Migration Act. The applicant does not identify the information to which he refers. Insofar as this may be intended to be a reference to the independent country information referred to in the decision, such information falls within the section 424A(3)(a) exception. There is nothing to indicate that there is any other information said to be subject to the section 424A obligation such as to establish that the Tribunal fell into error in the manner contended.
As no jurisdictional error has been established, the decision is a privative clause decision to which section 474(1) of the Act applies and the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 29 August 2005