SZCQV v Minister for Immigration
[2006] FMCA 891
•7 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCQV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 891 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – whether Refugee Review Tribunal erred in failing to invite applicant to another hearing – whether Refugee Review Tribunal complied with statutory obligations in conduct of review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36; 65; 412; 414; 425; 426A; 426A(2); 474; div.2 pt.8 |
| SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZCQV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG315 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 June 2006 |
| Date of last submission: | 20 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C. Jayawardena |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Ms A. Radich, Blake Dawson Waldron |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.[FMCoA1]
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $7645.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG315 of 2004
| SZCQV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal”) dated 9 December 2003 pursuant to s.39B of the Judiciary Act 1903 (Cth) and div.2 of pt.8 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed a decision of a delegate of the first respondent (“the Delegate”) made on 5 June 2003 in which the applicant’s application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
By consent the applicant relied on an amended application (“the Amended Application”) filed in this Court at the hearing. The applicant was represented by Mr Jayawardena. The Amended Application contained three grounds and each is addressed below.
Ground 1 – “That the Tribunal failed to accord ‘procedural fairness’ to the Applicant because of its failure to carry out its role in an Inquisitorial Manner despite it said ‘on the evidence I am unable to be satisfied’ concerning the Applicant’s claims and therefore was in breach of the mandatory provision in sec. 414 of the Migration Act 1958, owing to the following conclusions:-“The Applicant does not provide details for these claims. He does not provide information about the frequency, location, nature or dates of the claimed harassment. Nor does he provide details about the events that allegedly resulted in his detention and mistreatment for three months.” The applicant submits that even if an applicant fails to attend the hearing, it is well obligatory that the Tribunal has reached the ‘state of satisfaction’ that is required to be followed under sec.65 (by the Delegate) or sec.414 (by the Tribunal) of the Migration Act 1958.”
I understand this ground to be a complaint by the applicant made up of three contentions of error by the Tribunal in:
i)Failing to take any action to enable the applicant to appear before it in accordance with its discretion under s.426A(2) of the Act;
ii)Failing to reach the requisite state of satisfaction as required by s.65 of the Act; or
iii)Failing to comply with s.414 of the Act in its review of the applicant’s claims.
(i) Allegation Tribunal erred in failing to take any further action to enable the applicant to appear before it in accordance with its discretion under s.426A(2) of the Act
The applicant contends that he was denied procedural fairness because the Tribunal proceeded with its review in his absence without taking any further steps to invite him to attend another hearing. The Tribunal stated the following in its decision:
“On 27 October 2003 the Tribunal wrote to the applicant, and to his adviser, informing him that it considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 December 2003. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Tribunal contacted the adviser who informed the Tribunal that he had no further contact with the applicant and the applicant would not attend the hearing. A check of the applicant’s movement record indicated that the applicant had not left Australia.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.”
It is a matter for the Tribunal in the exercise of its discretion as to whether it decides to proceed with its review in accordance with s.426A of the Act or whether to adjourn the review and invite the applicant to another hearing.
The Tribunal noted that no response was received from the applicant to the invitation to attend a hearing sent to the applicant on 27 October 2003 pursuant to s.425 of the Act. Further, the Tribunal noted that the invitation informed the applicant that, if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
The Tribunal noted that the applicant’s advisor was contacted prior to the commencement of the review and informed the Tribunal that the applicant would not attend the hearing. The Tribunal also had regard to the applicants’ movement record and concluded that the applicant had not left Australia.
The Tribunal clearly identified those matters that weighed on the exercise of its discretion to proceed with the review. Section 426A of the Act entitles the Tribunal to proceed with its review in the absence of the applicant where s.425 of the Act has been complied with. Section 425 of the Act obliges the Tribunal to invite the applicant to attend a hearing. It did so by letter dated 27 October 2003.
In the circumstances, the Tribunal was entitled to proceed with its review in accordance with s.426A of the Act and it did so. Accordingly, there is no denial of procedural fairness to the applicant by the Tribunal in deciding to proceed with its review in the absence of the applicant without inviting the applicant to another hearing.
(ii) Allegation Tribunal failed to reach the requisite state of satisfaction as required by s.65 of the Act
The applicant’s complaint in respect of s.65 of the Act is misconceived in that s.65 of the Act obliges the Tribunal to refuse to grant a protection visa unless it is satisfied of the relevant criteria for a protection visa. The law is well established in respect of the principle that it is for an applicant to satisfy, relevantly, the Tribunal that the criteria for a protection visa are met by the applicant. To that end, the applicant is entitled to appear at a hearing, give evidence and present arguments. The relevant law is summarised by Hely J in SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 at [36]:
“It was for the appellant to put forward the information and materials on which he relied in support of his claims. The RRT is not in the position of a contradictor, rather, the RRT is to consider the appellant’s claims and determine if they have been made out: Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; 55 ALD 1; [1999] HCA 14 at [187] per Gummow and Hayne JJ. The RRT is not required to engage in “an uncritical acceptance of any and all allegations” made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; 124 ALR 265 at 278 per Beaumont J) and it is not required to accept a claim merely because positive evidence to the contrary is absent.”
It is for an applicant to make his or her case before the Tribunal and the Tribunal is not under a duty to make enquiries in respect of establishing the veracity or otherwise of the applicant’s evidence. (WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [73]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277). The principle is clearly enunciated in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 in the following terms by Gummow and Heydon JJ:
“The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.”
In the case before this Court, the Tribunal noted that the applicant claimed to have been harmed because of his political activities as a pro-Khalistan activist. It noted the applicant’s assertions that his father was an activist and was tortured on many occasions. It noted the applicant’s claims that he joined the Akali Dal party, was a propaganda secretary in the village and participated in political strikes and demonstrations. It also noted the applicant’s claim to have been arrested and held in custody for 9 days and tortured. However, the Tribunal noted that the applicant provided little detail about his political affiliation or those of his father as to when they became politically active and the nature and duration of their political activities.
The Tribunal noted that no details were provided of the applicant’s “claimed political activities”. The Tribunal noted that the applicant did not say when and where he was arrested, by whom or give details of the harm he claimed to have suffered.
The Tribunal also noted the applicant’s claims of being subjected to ongoing police harassment and torture. However the Tribunal noted that no details of such claims were provided in respect of the frequency, location, nature or dates of the claimed harassment or any details of the events that the applicant alleged gave rise to his detention and mistreatment for 3 months.
The Tribunal also noted that the applicant claimed to have been released from custody by means of a bribe and that he was warned to leave his village and cease political activities. The Tribunal noted that because it was not satisfied that the applicant had engaged in political activities it was not able to accept the applicant’s claim of having been warned to cease such activities. The Tribunal noted that the applicant provided no detail of the claims as to how he bribed his way out of jail, by whom, when and why he was warned to desist from political activity.
The Tribunal noted that independent evidence before it indicated that the pro-Khalistan movement had “all but ceased by 1994” and that by that time the applicant “would not have been twenty years old.”
The Tribunal was not satisfied on the evidence before it that the applicant was a member of Akali Dal, was a pro-Khalistan activist or was a holder of office at a village level in that organisation. Because the Tribunal was not able to be satisfied about the applicant’s political activities, it could not be satisfied that any harm suffered by the applicant was Convention based.
The failure by the Tribunal to reach the required level of satisfaction in respect of the applicant’s claims led the Tribunal to conclude that the applicant was not persecuted in India for his political activities or for any other Convention reason and that there was no real chance he would be persecuted if he returns in the foreseeable future. The Tribunal noted that:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”
Accordingly, there is no breach by the Tribunal of s.65 of the Act in refusing to grant the applicant a protection visa.
(iii) Allegation Tribunal failed to comply with s.414 of the Act in its review of the applicant’s claims
Section 414 of the Act obliges the Tribunal to review a decision of the Delegate to refuse a protection visa. It is plain from the above that the Tribunal discharged its statutory obligations to review the decision of the Delegate to refuse the applicant a protection visa.
In the circumstances, the Tribunal discharged its statutory obligations in respect of its review and there is no breach by it of s.414 of the Act.
Accordingly, ground 1 is not made out.
Ground 2 – “That the Tribunal acted ‘manifestly unreasonable’ manner towards the Applicant when dealing with the Applicant’s claims because of its failure to understand the criteria in article 1(A)(2) of the 1951 UN Convention relating to Status of Refugee, when it concluded: -“The Applicant claims that he was released from custody by means of a bribe and that he was warned to leave his village and cease his political activities. As I have not accepted that the Applicant was engaged in political activities, it follows that I do not accept that he was warned to cease such activities”. The Applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and deciding not to accept the Applicant’s claims at all, when the Applicant had lodged a valid review application in terms of sec. 414 and 412 of the Migration Act.”
Mr Jayawardena submitted that ground 2 is a complaint that the Tribunal failed to comply with its obligations under s.412 of the Act and s.414 of the Act, in that it acted in a “manifestly unreasonable way when dealing with the Applicant’s claims and deciding not to accept the Applicant’s claims at all.” The analysis of the Tribunal’s decision above makes it clear that the Tribunal understood the applicant’s claims, considered the applicant’s claims and was not satisfied to the level required by ss.65 and 36 of the Act that the criteria for a protection visa were met by the applicant. That is a finding of fact that was open to the Tribunal on the material and evidence before it. There is no demonstrable unreasonableness in the way in which the Tribunal dealt with the applicant’s claims. This Court has no jurisdiction to interfere with findings of fact made by the Tribunal that were open to the Tribunal on the evidence and material before it.
Accordingly, this ground is not made out.
Ground 3 – “That by virtue of the errors made by the Tribunal in Grounds 1 and 2 above, the Tribunal failed to uphold the ‘jurisdictional commitment’ envisaged in sec. 91R of the Migration Act whether there would be a possibility or a ‘real chance’ that the Applicant may face ‘serious harm’ if he were asked to return to India. The Applicant submits that the Tribunal’s finding that “On the evidence as a whole, I find that the Applicant was not persecuted in India for his political activities or for any other Convention reason. I also find that there is no real chance that he will be persecuted if he returns now or in the foreseeable future”. The Applicant submits that it was completely a misnomer for the Tribunal to state such as “on the evidence as a whole” when the Tribunal never considered any of the Applicant’s written claims acceptable. Hence it was a wrong assumption made by the Tribunal which amounts to a ‘jurisdictional error’ as per the High Court decision in Craig.”
Again this ground appears to seek merits review which is not open to this Court. Given that this ground is expressed to be based on the errors of grounds 1 and 2, in light of my rejection of those grounds as set out above, ground 3 does not identify any reviewable error.
Conclusion
Accordingly, the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 20 June 2006
[FMCoA1]I have added these joinder orders as requested since joinder orders were not previously made.
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