SZCIZ v Minister for Immigration

[2005] FMCA 364

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIZ & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 364

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – applicants claiming particular social group persecution in India – applicants failing to attend RRT hearing – no reviewable error found – application dismissed.

PRACTICE AND PROCEDURE – Refusal of an adjournment – applicant failing to take advantage of opportunity to file evidence and receive legal advice.

Migration Act 1958 (Cth), ss.424A, 426A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

First Applicant:

Second Applicant:

SZCIZ

SZCJA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2928 of 2003

Judgment of: Driver FM

Hearing date: 22 March 2005

Delivered at: Griffith

Delivered on: 22 March 2005

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent: Mr A Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2928 of 2003

SZCIZ

First Applicant

SZCJA

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 10 November 2003 and handed down on 3 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  The applicants are from Gujurat State in India.  Relevant background facts are set out in paragraphs 2-14 of written submissions prepared on behalf of the Minister by Mr Markus.  I adopt those paragraphs for the purposes of this judgment as background:

   The applicants are husband and wife and citizens of India.[1]  The applicants arrived in Australia on 8 November 2002.[2]  On 8 December 2002 the applicants lodged an application for protection (Class XA) visas[3].  Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.

   [1]  court book, pages 1, 12, 26

   [2]  court book, page 13

   [3]  court book, page 1

   The applicant’s claims were detailed in a statement dated 3 December 2002 attached to the protection visa application.[4]

   [4]  court book, pages 30-31

   In summary, the applicant claimed a well founded fear of persecution in India on the basis of his membership of a particular social group (as a low caste Hindu).  In particular, the applicant claimed that:

   ·he was a member of a low caste family and that such people suffer discrimination and persecutory behaviour;

   ·he formed a social committee aimed at upholding the rights of low caste Hindus in his district and elsewhere, and they held protest rallies; and

   ·he and his colleagues were beaten by upper caste Hindus and false charges were brought against him.

   The Minister’s delegate refused the applicants’ application for a protection visa on 4 March 2003 and the applicants applied to the RRT to review that decision on 28 March 2003[5].

   [5]  court book, pages 47-50, 51.4

   On 9 September 2003 the RRT sent a letter to the applicants,[6] at their mailing address,[7] which was also sent to the address of their authorised recipient,[8] stating:

   [6]  court book, pages 53-54

   [7]  court book, page 47.8

   [8]  court book, page 48.7

   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 letter invited the applicants to a hearing on 3 November 2003.

   As no response has been received to the hearing invitation, on 30 October 2003 the RRT contacted the applicants’ adviser on the telephone.  He informed the RRT that the applicants were aware of the hearing, but he did not know whether they intended to attend the RRT to give evidence and present arguments in support of their claims.

   The applicants did not appear before the RRT on the day and at the time and place they were scheduled to appear for a hearing. In those circumstances, pursuant to s.426A of the Act, the RRT proceeded to make its decision on the review without taking any further action to enable the applicants to appear before it[9].

   The RRT’s decision, made on 10 November 2003, was handed down on 3 December 2003.  The RRT affirmed the decision of the delegate.

   The RRT’s decision

   The RRT concluded that, in light of the independent evidence before it and the vague and contradictory claims advanced by the applicant, it was not satisfied that the applicant had a well-founded fear of persecution under the Convention because of his membership of a low caste, or for any other Convention related reason[10].

   In particular, the RRT noted that, although the applicant’s claims are not specific as to what caste he belongs to, the application and other material submitted by the applicant suggests that he claims to belong to the caste of “untouchables” or Dalits.  The RRT also noted, however, that other aspects of the applicant’s claims were inconsistent with independent country information about the position of Dalits.

   The RRT accepted independent country information to the effect that Dalits “occupy the lowest levels of the Indian caste system and face systematic and severe discrimination” [11].

   However, the RRT found that the applicant did not fit the profile of those who did belong to the Dalit caste and, in all the circumstances, the RRT was not satisfied that the applicant was a member of the Dalit caste[12].

   The RRT also concluded that the applicant claims of persecution were vague and contained insubstantial detail.  On the material before it, the RRT was not satisfied that the applicant had ever suffered persecution or discrimination as he had claimed[13].

   [9]  court book, page 64.5

   [10]  court book, page 69.5

   [11]  court book, page 68.7

   [12]  court book, pages 68.8-69.2

   [13]  court book, page 69.2

2. The applicants rely upon their judicial review application filed on 31 December 2003.  In that application, while four grounds of review are set out with a promise of more details later, no particulars of any of the grounds are provided.  In the absence of particulars, the grounds are meaningless.  The first applicant attended a directions hearing in person on 5 March 2004.  He was assisted by a Gujurati interpreter.  He consented to an order requiring him to file and serve any amended application and any evidence upon which he proposed to rely by 30 April 2004.  No amended application and no evidence has been filed by or on behalf of the applicants. 

3. Yesterday, when this matter was called over the first applicant filed in court written submissions.  I established this morning that these submissions were prepared with the assistance of the applicant’s migration agent, Mr Sadar Hissaque Khan Saddozai of Saddozai Immigration Consultants, PO Box 14, Lakemba, New South Wales, 2195.  Mr Saddozai has been assisting the applicants since their protection visa application was considered by the Minister’s delegate.  The first applicant told me that at all times Mr Saddozai has been assisting the applicants for free.

4. The written submissions follow a form with which the Court is familiar.  In some respects it is difficult to reconcile the submissions with the facts in this case.  The submissions are signed by the applicant husband but at one point the submissions refer to “his husband”.  It may be that the second applicant, the applicant wife, has had some input into the submissions.  On the last page the submissions refer to the applicants’ dependent son, stating that he has been in Australia since 1997 with the first applicant and as at 17 March 2005 he is a student in Year 8.  He is said to have spent his formative years in Australia and to have performed well as a student.  Those assertions do not tally with what appears in the court book.  The original protection visa application, set out from page 1 of the court book, provides details of the applicants’ children on pages 3 and 4.  The applicants state in that document that they have a daughter and a son with them in Australia but that, as at the time that form was completed on 3 December 2002, the son was over the age of 18 years.  The application also states that the applicants have a second daughter in India.  I queried these facts with the first applicant this morning.  He told me from the bar table that both his daughters live in India and neither joined him in Australia.  He also told me that his son did not come to Australia in 1997 or indeed in 2002 when the applicants arrived in Australia.  He was not able to tell me when his son did arrive in Australia.  The first applicant told me that he son is not living with him but is living with friends.  He was not able to tell me where his son was living.  He thought it could be in Melbourne or possibly in Sydney.  He was not able to tell me what school his son was attending.  He told me that he thought his son was 13 or 14 years old.  This causes me to doubt that his son is dependent upon the applicants.  It also causes me to doubt that the applicants have a continuing interest in his education.

5. The written submissions assert actual bias and bad faith.  However, there is nothing in the written submissions or the court book, which I received as evidence, to support those assertions.  The first applicant was not able to support those assertions in his oral submissions.  The written submissions seek to draw support from the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. However, there are no agreed facts in this case and the time for filing evidence has long since passed.

6. The written submissions assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) but the first applicant was not able to point to any adverse and determinative information that was not disclosed to him. It appears from the RRT decision and reasons that the presiding member based his decision upon the material submitted by the applicants and upon general country information relating to the caste system in India. Neither class of information was required to be disclosed to the applicants pursuant to s.424A of the Migration Act.

7. The written submissions assert in general terms a breach of the rules of natural justice. The only conceivably relevant issue could be the fact that the RRT made its decision in this matter without a hearing. This issue is dealt with by the presiding member on page 64 of the court book. On 9 September 2003 the RRT wrote to the applicants by letter addressed to the first applicant advising that it had considered all of the material before it relating to their application but it was unable to make a favourable decision on that information alone. The RRT invited the applicants to give oral evidence and present evidence at a hearing on 3 November 2003. They were advised that if they did not attend the hearing and a postponement was not granted the RRT may make a decision on their case without further notice. The letter was sent to the residential address given by the applicants in the application for review. The RRT had no separate postal address. A copy of the letter was sent to the applicants’ migration advisers. No response was received. The letters were not returned unclaimed. On 30 October 2003 the RRT checked its files for a more recent address and telephone number. On the same day the RRT telephoned the applicants’ adviser. The adviser stated that the applicants were aware of the hearing but he did not know their intentions or whether or not they would attend. The applicants did not appear at the RRT on the day and at the time and place when they were scheduled to appear. In these circumstances and pursuant to s.426A of the Act the RRT decided to make its decision on the review without taking any further action to allow the applicants to appear before it

8. It was in my view fair for the RRT to make a decision without an oral hearing. The RRT was entitled to do so. That entitlement arose from s.426A of the Act. To the extent that any procedural fairness obligation may arise under the general law, I am satisfied that the RRT did what could be reasonably expected of it in attempting to locate the applicants and advise them of the hearing invitation. There was no procedural unfairness in the procedure followed by the RRT.

9. The first applicant concentrated in his oral submissions before me on seeking to obtain an adjournment of today’s hearing.  The hearing had been brought forward to today from the original hearing date of 2 September 2005.  The first applicant asserted that he had not received the court book.  I provided the court copy to him yesterday and permitted him to photocopy from it whatever he wished.  He told me this morning that he had photocopied the entire document, although he also said that he had not had the opportunity to read and understand all of the documents in it.  The first applicant also told me yesterday that he had not received the Minister’s submissions.  He told me that his address had changed from that shown on his judicial review application.  The first applicant told me that his current address is 4/5 Bringan Street, Griffith and that his postal address is PO Box 1946 Griffith.  Later in the day yesterday after I had agreed to hear an applicant who is located at Jerilderie, the first applicant sought the opportunity to be heard yesterday on the basis that he also lived at Jerilderie.  When I queried this with him, given his address in Griffith, he told me that the address he gave me was in fact the address of his brother.  He confirmed this this morning.  He told me that he is an itinerant agricultural worker and moves frequently. 

10. The first applicant sought an adjournment of about four weeks.  He said that this would enable him to gather further information to concentrate on the material already available and to obtain legal representation.  I declined to grant an adjournment.  The application before the Court has been on foot since 31 December 2003.  The applicants have not taken advantage of the opportunity afforded to them on a consent basis to provide evidence on or before 30 April 2004.  If that period was not long enough, the applicants should not have consented to the order.

11. The applicants have been referred to Mr Mark Campbell of Chalfont chambers on or about 16 April 2004 under the Minister’s panel advice scheme.  My associate contacted Mr Campbell this morning who told her that there had been some delay in obtaining the court book.  He said that he received the court book on 24 February 2005.  He also said that he wrote to the applicants on 26 February 2005 asking them to contact him to obtain legal advice.  He has received no response.  Mr Campbell used the street address given to me by the first applicant yesterday.  That is the same address that he had been given by the Federal Court registry in April last year.  The first applicant initially denied receiving a letter from Mr Campbell.  He could not offer any explanation as to why he had not received it.  Later, he said that he had received a letter from Mr Campbell two or three weeks ago but that the court book had not been received.  Later he told me that the contents of the letter had been read to him by his brother and that there may have been some confusion.  It is not possible for me to form a definitive view of what has occurred.  However, the various explanations from the first applicant are unsatisfactory.  He did not properly attend to his affairs in failing to attend the hearing before the RRT.  He has not attended properly to his affairs in failing to take advantage of the opportunity afforded to him to participate in the legal advice scheme.  In the circumstances, I find that an adjournment of these proceedings is unwarranted.

12. In my view there is no jurisdictional error of the RRT.

13. I will therefore dismiss the application.

14. On the question of costs, I am satisfied that costs should follow the event.  Mr Markus seeks an order for costs fixed in the sum of $4,000.  I am satisfied that costs of at least that amount have been properly and reasonably incurred in this matter.  The first applicant doubted his ability to pay that sum but impecuniosity is not a reason for the Court to refrain from making a costs order.  It is of concern to me that the applicants in this matter have not received advice under the Minister’s panel advice scheme.  However, it appears to me that the reason the applicants have not had that advice is due at least in part to their failure to contact the panel adviser.  I also note that at all times the applicants have had the assistance of their migration adviser on a no fee basis. 

15. In the circumstances, I have formed the view that a costs order should be made and the amount should be in the amount sought by the Minister.  I will order that the applicants pay the costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 April 2005