SZCIT v Minister for Immigration - [2005] FMCA 1677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIT v MINISTER FOR IMMIGRATION

[2005] FMCA 1677

MIGRATION – Application to review decision of the Refugee Review Tribunal – applicant did not attend hearing – whether Tribunal obliged to make positive findings either rejecting or accepting applicant’s claims or to consider independent country information.

Migration Act 1958, ss.65, 426A

VSAF/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004 FCA 1270
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225

Applicant:

SZCIT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2922 of 2003

Judgment of:

Barnes FM

Hearing date:

8 November 2005

Delivered at:

Sydney

Delivered on:

8 November 2005

REPRESENTATION

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondent:

Ms T Wong

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Refugee Review Tribunal be joined as a second respondent to the proceedings.
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the amount of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2922 of 2003

SZCIT

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 25 November 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant claimed to be a citizen of India. She arrived in Australia in December 2002. In March 2003 she applied for a protection visa. The application was refused and she sought review by the Tribunal.
The Tribunal reasons for decision record that on 8 October 2003 it wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited her to attend a hearing and advised her that if she did not attend and a postponement was not granted, it may make a decision on her case without further notice. The reasons for decision detail the manner in which the invitation was sent to the applicant to her migration agent, the absence of a response and the Tribunal’s efforts, by telephone calls to the adviser, to ascertain whether the applicant would be attending the hearing. The migration agent confirmed that he had informed the applicant of the hearing but had not received a response from her.
The Tribunal recorded that the applicant did not appear before the Tribunal at the day, time and place scheduled. Nor did she or her migration agent contact the Tribunal after the hearing date to request an adjournment. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal decided to make its decision on review without taking any further action to enable the applicant to appear before it.
The applicant claimed in connection with her protection visa application that she was a Muslim who had a relationship with a Hindu man. She claimed she had been harassed by her relatives and received threatening calls from Hindu activists. She claimed to fear that her relatives or Shiv Sena activists who were claimed to hate Muslims would harass, harm and kill her because of her involvement with a Hindu. The Tribunal was satisfied that the applicant was a citizen of India. However, it noted that while the applicant referred to harm feared from her relatives she had not provided any details about the nature of harassment allegedly experienced. She had also claimed to have received threatening phone calls from Hindu activists which had prompted her to leave India, but provided no details about how the activists were able to identify her, obtain her telephone number or how often they made the threatening calls. It also had regard to the fact that she did not state whether she continued to have contact with the gentleman with whom she had had the relationship or whether she would resume the relationship with him upon her return to India. It noted that she claimed that the authorities would not protect her from her relatives or the Hindu activists but would mistreat and harass her under their instructions but that she did not state why they would do so. The Tribunal found without this additional information it was not prepared to accept the applicant's mere assertions that she had a relationship with a Hindu man and that for that reason she was harassed by her relatives and threatened by Hindu activists or the Shiv Sena or that she would be harmed by them in the future. Therefore the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if she returned to India.
The applicant sought review by application filed in this court on 30 December 2003. She now relies on an amended application. It was not on the court file. Leave was granted for a copy of the amended application to be filed in Court. The claims in the amended application were addressed in written submissions on behalf of both the applicant and the respondent.
The amended application details the applicant's claims and contends that:
Available to the Tribunal was a vast body of independent material such as Country Reports and the like by which her claims could be weighed. However the Tribunal failed to examine this evidence and rejected the applicant's claims on the grounds of:
a) there was no evidence of how the Hindu activists were able to identify her and obtain her telephone number.
b) there was no evidence of whether if she returned she would resume the relationship with the Hindu man (the cause of all her problems).
Contrary to the claim by the Tribunal that it considered the evidence as a whole it did not do so and thereby failed to discharge its statutory duty.
In written submissions the legal representative for the applicant contended that the Tribunal had erred in failing to consider what were described as “macro” questions such as the facts and events in relation to the situation in India and in concentrating on “micro” matters such as the particular situation of the applicant.
Reliance was placed by the applicant on the decision of Gray J in VSAF/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004 FCA 1270 in support of the proposition that in the absence of findings as to the facts either favourable or unfavourable to the applicant the Tribunal could not reach the requisite state of satisfaction and hence had fallen into jurisdictional error.
However, as was pointed out in the course of the hearing, that decision was reversed on appeal; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. In relation to the specific point which forms the basis for the applicant's argument the Full Court of the Federal Court (Black CJ, Sundberg and Bennett JJ) considered whether the primary judge had erred in suggesting that the Tribunal could reject the application for protection visa only if the applicant's claims were rejected or if it found that circumstances had changed in that person's home country so as to make the claims no longer relevant to his likely treatment or return.
The Full Court held that in a case such as the case before it where the applicant had failed to attend a Tribunal hearing: “the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims” (at [16]). Their Honours pointed out, and it is relevant to the contentions of the applicant in relation to a comparison of the delegate's decision with the Tribunal decision, that in reviewing a decision the Tribunal “stands in the shoes” of the original decision-maker. The delegate is bound under s.65 of the Migration Act1958 to grant the visa if satisfied the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. As their Honours said at [16]:
Section 65 shows that the relevant decision is not whether a person is or is not a refugee but whether the decision-maker is satisfied as aforesaid.
Also see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274. Critically their Honours stated at [17] – [18]:
We are unable to agree with his Honour's statement that "in the absence of findings as to the facts either favourable or unfavourable to the [applicant] the Tribunal could not reach the requisite state of satisfaction or the requisite state of non-satisfaction. As s.65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant's claims were at “such a general and vague level that the Tribunal can not establish the relevant facts”, and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court.
We do not accept the respondent's submission that the Tribunal failed to make a decision as to its state of satisfaction or not in relation to the evidence before it at the time of the hearing. In the penultimate paragraph of its decision: Having reviewed the evidence, it said ‘the Tribunal is not satisfied that the [respondent] is a person to whom Australia has protection obligations’.
Their Honours found that the primary judge, on whose decision the applicant relies in this matter, erred in concluding that in the absence of findings as to the facts either favourable or unfavourable to the applicant for a protection visa the Tribunal could not reach the requisite state of satisfaction or non-satisfaction.
VSAF is directly in point. The applicant did not attend a Tribunal hearing. On the evidence put before it by the applicant the Tribunal did not err in its approach to its findings. As in VSAF the Tribunal made a finding as to its state of satisfaction. The reasons for decision demonstrate that the Tribunal did take into account the limited evidence in relation to the applicant’s particular circumstances as presented by the applicant in support of her claim. It concluded that without additional information it was unable to be satisfied that she had a well-founded fear of persecution for a Convention reason. It is well established that it is for the applicant to make out her claim to suffer a well founded fear of persecution. See Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 187 per Gummow and Hayne JJ and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at 36. No jurisdictional error is established in the manner contended.
The legal representative for the applicant expressly stated that he took no issue with the Tribunal's compliance with procedures prior to the hearing or with its power to proceed under section 426A of the Migration Act 1958 to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Moreover, as is apparent from the Tribunal reasons for the decision and is not disputed by the legal representative for the applicant, the Tribunal not only invited the applicant to a hearing, but in the letter of invitation advised that it had considered all the material relating to her case and was unable to make a favourable decision on that information alone and that if she did not attend the hearing and the Tribunal did not postpone it it could make a decision on her case without further notice.
The Tribunal applied the appropriate legal tests in determining whether it was satisfied on the information before it that the applicant had a well-founded fear of persecution. It summarised and took into account the limited evidence presented by the applicant. It was not necessary, contrary to the contentions of the legal representative for the applicant, for the Tribunal to have regard to independent information such as the country information referred to in the decision of the delegate in relation to the situation in India in circumstances where it was unable to be satisfied on the evidence before it of the claims made by the applicant in relation to the events that she claimed had occurred and the fears of persecution that she claimed to have for the future. It was not necessary for it to make positive findings either accepting or rejecting those claims as contended.
Further, while it is suggested in the amended application that the Tribunal rejected the applicant's claims on the grounds that there was no evidence of how the Hindu activists were able to identify her and obtain her telephone number and no evidence of whether if she returned she would resume the relationship with the Hindu man, in fact the Tribunal had regard to a number of areas in which there was an absence of detail in the claims of the applicant, not merely those two matters. Rather than rejecting her claims in the manner contended it found that without additional information (which it described) it was not prepared to accept her mere assertions about a relationship and that for that reason she was harassed and threatened or that she would be harmed as claimed in the future. It was on that basis that the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.
No jurisdictional error has been established. Accordingly, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should pay the costs of the respondent. The amount sought is appropriate.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 21 November 2005