SZCIS v Minister for Immigration
[2005] FMCA 1207
•18 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCIS v MINISTER FOR IMMIGRATION | [2005] FMCA 1207 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend hearing – no jurisdictional error. |
| Migration Act 1958, ss.424A, 426A, 441C & 474(1) |
| S58/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 NAAG of 2003 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 713 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 Re, Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 397 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 WAGP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 VUAX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 |
| Applicant: | SZCIS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2921 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal be joined as Second Respondent to the proceedings
That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2921 of 2003
| SZCIS |
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 handed down on 2 December 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, arrived in Australia in October 2002 and applied for a protection visa. He claimed in the statement accompanying his protection visa application to be of Sikh ethnicity and religion and a strong supported of the Akali Dal party; that a group of Muslims began visiting his restaurant once a month in 2001; that he had allowed them to shelter there; that he was asked to accompany them to Kashmir; that he had refused, but subsequently had visited Kashmir with a friend and stayed with the group.
Members of the group had later been guests at his home, but he did not know (until he was subsequently told by supporters of the Akali Dal party) that they were Muslims who were militants of the Azad Kashmir movement who were wanted by the police. He claimed that he had been arrested by the State police for aiding the militants, had been kept in a cell and interrogated about his involvement with the group and that he had been injured during the interrogation. He claimed to have been harassed by members of the Akali Dal party as a result of the support he had given to his Muslim friends, that his family and other relatives had been harassed and attacked and that fabricated false cases had being instigated. He also claimed to have suffered mistreatment from Congress party supporters and to fear arrest under false charges under instructions from the ruling party.
The application was refused and the applicant sought review by the Tribunal. In his review application lodged in March 2003, the applicant repeated his claims to be a supporter of the Akali Dal party, his association with his Muslim customers, his lack of knowledge about their involvement in the Azad Kashmir movement, his arrest detention and injury by the State police and the harassment and mistreatment of him and his family. He stated that his reason for fear was that he would be harmed by supporters of the Congress Party or the militant Muslim group and that he would be falsely arrested by the police under instruction from the Congress Party.
In his application for review the applicant provided the same home and mailing address. He also nominated a migration agent as his authorised recipient. The Tribunal acknowledged receipt of the application by letter sent to the two nominated addresses. Subsequently by letter of 18 July 2003 it wrote to the applicant (with a copy sent to his authorised recipient) inviting him to attend a hearing on 17 October 2003. A response to hearing invitation was signed on 25 August 2003 indicating that the applicant wished to attend the hearing. Subsequently a facsimile from the applicant's migration adviser advised the Tribunal of a change of address. The Tribunal acknowledged receipt of that notification.
On 2 October 2003 the Tribunal wrote to the applicant at the newly notified mail address, at his new home address and also care of his migration agent stating that the hearing could not proceed on the previously appointed date and inviting him to a hearing on 31 October 2003. The material before the Court indicates that the letter addressed to the applicant's street address was returned to the Tribunal on 31 October 2003 marked insufficiently addressed. However there is nothing to suggest that either of the other letters were returned. According to the Tribunal reasons for decision the Tribunal rang the applicant's migration adviser on 30 October 2003 and he informed the Tribunal that the applicant would attend the hearing scheduled for 31 October 2003.
The applicant did not attend on that day, and pursuant to section 426A of the Migration Act 1958, the Tribunal proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the applicant's claims, noted that he had been advised in the invitation to a hearing that the Tribunal was unable to make a decision in his favour on the information before it and that he had not appeared at the hearing to elaborate on his claims. It stated that it had a number of issues upon which it required a good deal more detailed evidence before it could be satisfied that the applicant was in genuine fear of persecution and that there was a real chance that he would be persecuted. On the limited, vague and unreliable evidence available the Tribunal found that it could not be satisfied about the applicant's claim that he inadvertently associated with militants from Kashmir and as a result was detained by the authorities in India and that the authorities would arrest him on return. Nor was it able to be satisfied that he faced arrest by the authorities on his return to India or that he faced threats to his life from militants or members of the ruling party. It noted that the applicant had provided minimal detail or explanation as to why he would be of ongoing adverse interest to militants or ruling party members on his return. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review by application filed in this Court on
30 December 2003. The application raises six generally expressed and unparticularised grounds of review. At the commencement of the hearing today, the applicant filed written submissions. I have considered each of the grounds raised in the application and also insofar as they differ, the matters raised in the written submission.
Considering first the grounds in the application, the first ground is that the Tribunal ‘denied the evidentiary proof’ of his claim. Apart from the assertions in his protection visa application and review application, the applicant submitted no evidence in support of his claims. This ground seeks merits review and does not establish any jurisdictional error.
The second ground is that the Tribunal deprived him of natural justice. No particulars are provided. However an issue arises because of the applicant's failure to attend the Tribunal hearing. It is apparent from the material before the Court that the Tribunal properly invited the applicant to a hearing. While one of the letters of 2 October 2003 was returned to sender it was properly addressed to the address provided, as were the other copies of that letter. (Also see s.441C(4)). The Tribunal notified him at all of the addressees available to it of the postponement of the hearing, and indeed it went beyond its procedural obligations in contacting his adviser on the day before the rescheduled hearing. Despite having indicated that he would attend the hearing, the applicant did not attend the Tribunal hearing. He had been offered the opportunity to appear and to address any concerns that the Tribunal may have about its claims, and to put forward any material on which he sought to rely.
As the Full Court of the Federal Court stated in S58/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26] an applicant cannot complain in these circumstances if his application was rejected because, amongst other reasons, he failed to take up that opportunity. No lack of procedural fairness is established from the fact that the applicant failed to attend the Tribunal hearing.
The third ground relied on in the application is that the Tribunal made its decision in bad faith. There is nothing in the Tribunal decision or procedures to indicate bad faith. As Allsop J stated in NAAG of 2003 v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCA 713 bad faith is not just a matter of poor execution or poor decision making involving error. It is a lack of an honest or a genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. The applicant suggests that the decision maker got the facts wrong, took into account irrelevant matters, did not take certain matters into consideration or make an honest attempt to come to the right decision and intentionally made a wrong decision. None of these contentions are established on the material before the Court. The Tribunal gave the applicant the opportunity to attend a hearing and notified him that it was unable to make a favourable decision on the information before it. There is nothing in the material before the Court to suggest that the Tribunal did not make an honest or genuine attempt to undertake the task before it.
Further the contentions that the decision maker got the facts wrong, took into account irrelevant matters or did not take certain matters into consideration are not established. The applicant failed because of the inadequacy, vagueness and unreliability of the evidence put before the Tribunal and the lack of elaboration and detail in his claims.
There is nothing in the material before me to establish that the Tribunal had reached a state of pre-judgment (a matter raised by ground 5 in the application, which claims that the Tribunal had given a decision which was pre-set in the back of its mind). There is nothing to suggest that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration or not open to persuasion whatever evidence or arguments may be presented. See Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] to [72] per Gleeson CJ and Gummow J. On the contrary. The Tribunal invited the applicant to a hearing, used its best endeavours to notify him of his opportunity to attend and stated that it had a number of issues upon which it sought clarification. No actual bias is established. Nor is there anything in the material before me to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Returning to ground 4 of the application (that the Tribunal mixed up many facts with this decision which affected the decision), this ground has no substance and must be rejected. The Tribunal considered the merits of the applicant's case on the material before it and found it lacking. Similarly Ground 6 (that the Tribunal's decision did not reflect the material facts of the claim) is not established. The Tribunal adequately articulated all aspects of the applicant's claim in its decision insofar as necessary and possible on the material before it.
The written argument commences by suggesting that the decision was induced or affected by actual bias. I have indicated above that actual bias is not established. There is nothing to support the contention that the findings and reasons are not properly justified by the Tribunal. The findings were open to the Tribunal on the material before it for the reasons that it gave.
The applicant also claims that the Tribunal did not accept that he was persecuted because of his ethnic Sikh minority, a member of a particular social group in India. He refers to fearing mistreatment by Congress party supporters and a chance of arrest because of a false charge. While the statement in support of his protection visa application commenced with a statement that the applicant belonged to Sikhism ethnicity and Sikh religion, it went on to make claims in terms of his support of the Akali Dal party and association with the group of Muslims. It specifically refers to claims of mistreatment by the police and by the Congress party and a fear of false cases. The claims raised in the review application follow the same pattern and refer to the same matters. There is no suggestion in the material put before the Tribunal by the applicant that he had experienced persecution based on his ethnicity and religion such as to raise an implicit claim on that basis. The Tribunal reasons for decision adequately address all of the bases on which the applicant claims to fear persecution including religion and particular social group. The Tribunal detailed some particular issues in relation to which it was not satisfied on the information before it. It is clear that more generally there were a number of issues on which it required further evidence before it could be satisfied that the applicant was in genuine fear of persecution and that there was a real chance that he would persecuted for any reason. In such circumstances it did not err by failing to address whether the applicant was a member of a particular social group as contended. It has not been established that the Tribunal failed to have regard to an element or integer of the applicant's claims or to ask the right question, that it erred in the manner considered by the High Court in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 397 or that it otherwise fell into jurisdictional error in its treatment of his claims.
The written argument also contended that the Tribunal did not investigate his claim ‘with the independent country information like Amnesty International’. The Tribunal was not under an obligation in the circumstances of this case to make such an investigation. The function of the Tribunal is to respond to the case that the applicant advances. It was not under an obligation to make inquiries. Nor, in circumstances where the decision turned on the inadequacy of the material before it and the fact that the Tribunal was therefore unable to be satisfied of the applicant's claims, was it necessary for it to refer to independent country information, as appears to be contended.
The applicant also raises, in a manner which is not entirely clear, section 424A of the Migration Act, stating:
The Tribunal did not treat this matter as a section 424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal.
The applicant had repeated the essence of his claims in the statement annexed to the review application. There is nothing to suggest that the principles considered by the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 have any relevance in this case. Nor is there anything to establish that section 424A is otherwise relevant or that the Tribunal relied on information as the reason or part of the reason for affirming the decision under review such that the obligations under section 424A arose. See WAGP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 and also VUAX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158.
I have already indicated that I am not persuaded by the argument that the applicant was denied procedural fairness or by the contention that the Tribunal did not act in good faith. No jurisdictional error has been established. The decision is a privative clause decision to which section 474(1) of the Act applies. The application must be dismissed. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he pay costs in the sum of $3,300. The applicant states that he cannot pay that sum at once. While the applicant's ability to repay may be a matter taken into account by the respondent in determining when and how to seek to recover costs, it is not a matter that warrants departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 31 August 2005
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