SZCWC v Minister for Immigration
[2006] FMCA 745
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCWC v MINISTER FOR IMMIGRATION | [2006] FMCA 745 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minster not to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reason of religion. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| Australian Gas Light v Valuer-General (1940) 40 SR (NSW) 126 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Applicant S20/2002 (2003) 198 ALR 59 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 Davis v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 686 NABE v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 263 |
| Applicant: | SZCWC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | SYG 571 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 May 2006 |
| Date of last submission: | 16 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed under Rule 13.03A(e) of the Federal Magistrates Court Rules 2001.
The Applicant is to pay the Respondent's costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG571 of 2004
| SZCWC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal that was handed down on the 30th January 2004.
The Applicant is a citizen of India who entered Australia on the
29th December 2002 and applied for a Protection Visa on the
11th February 2003. That application was refused on the 28th March of that year and the Applicant then sought a review of the decision from the Refugee Review Tribunal.
The Applicant filed an application for review on the 29th April 2003. With that application he attached a written submission quoting from an earlier Refugee Review Tribunal decision relating to country information about the sharp increase in attacks against Christian communities and Christian missionaries in India.
The Tribunal invited the Applicant to attend a hearing which was scheduled to take place on the 8th December 2003.
After the Applicant had received that letter, which was dated the 29th October, 2003, he forwarded a written submission to the Tribunal which is reproduced in the Court Book at pages 106 through to 116. He also forwarded photographs, certificates and letters addressed to him setting out details of his religious involvement, including a copy of his Certificate of Marriage.
The Applicant attended the hearing of the Tribunal in Melbourne and gave oral evidence.
The Tribunal's findings and reasons are set out on pages 135 through to 139 of the Court Book. It is noteworthy that the Tribunal accepted that the Applicant was a Catholic and that he had given truthful evidence about his circumstances in the course of making his application for a Protection Visa.
The Tribunal also noted to the Applicant's credit, that he did not seek to exaggerate or embellish his circumstances; that he was concerned for his and his family's future in India and considers that their opportunities and security would be better in Australia. Nevertheless, the Tribunal, after considering the evidence and independent country information, came to the view that there was not a real chance that the Applicant would be persecuted on account of his religion.
The Tribunal did note, on page 139 of the Court Book, that whilst the Tribunal understood the Applicant's concern about changes in how religious minorities are regarded by some Hindus in India, nevertheless the Tribunal did not consider that there was a real chance that the Applicant would face harm amounting to persecution because of his Christianity if he were to return to India. The Tribunal affirmed the decision not to grant a Protection Visa.
The Applicant sought a review of this decision by filing an application at this Court. In an Amended Application filed on the 13th January 2005 the Applicant sought writs of certiorari and mandamus. The Applicant set out seven grounds for that application. They largely refer to the Applicant's challenge of factual findings made by the Tribunal or claims by the Applicant that the Tribunal either ignored or failed to give sufficient weight to various factual matters.
Counsel for the Respondent Minister, Mr Mitchell, has summarised those claims as follows:
a)The RRT failed to accept the Applicant's claim of serious discrimination.
b)The RRT ignored the Applicant's evidence that Christians were not eligible for any aid and they did not fit into any of the government's welfare policies.
c)The RRT ignored the evidence that the quota system itself amounted to serious discrimination against minorities, especially Indian Christians.
d)The RRT failed to properly and fairly take into account the Applicant's evidence that his wife's family wanted him dead.
e)The RRT failed to properly and fairly take into account the country information that recorded evidence of 120 cases of rape, Bible burning, assault and other forms of violence against Christians in 1998.
f)The RRT failed to consider that the Applicant was a high profile Catholic Christian who had represented Indian Catholics on an international level twice and that such a person could be prime target for those with contrary interests. Further, that conversion of his wife and baptising his children could pose a serious threat to his life if disclosed.
In respect of the first of those claims; the Minister submits that the particular ground did not amount to jurisdictional error because findings of fact are immune from judicial review. Findings of fact may constitute jurisdictional error where they are made without evidence to support them, where they are unreasonable or lacking in logic or where they demonstrate apprehended bias. However, in this case, the First Respondent submits the Tribunal's findings were open to the Tribunal and were not so unreasonable that no reasonable decision maker would make those findings and were not lacking in logic. I am referred to decision in Australian Gas Light v Valuer-General (1940) 40 SR (NSW) 126 at 137-8, also to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 and Applicant S20/2002 (2003) 198 ALR 59 at [52], [75], [99] – [101] and [136].
In respect of the second and third claims which I have referred; the Respondent submits, and I believe correctly, that the Tribunal Member did consider the claims and integers of claims made by the Applicant in respect to educational assistance, the quota system and other government policies and practices. Specifically, the Tribunal Member referred to the Applicant's claims at page 128 of the Court Book, considered country information about the "Hinduisation of Education" and other discriminatory government policies and practices, page 131 of the Court Book, considered that minorities can establish their own schools, at page 133, and concluded that the disadvantage the Applicant faced in relation to education and other discriminatory practices and polices did not constitute serious harm of the kind envisaged by s.91R of the Migration Act.
Further, the Tribunal Member found that the Applicant did not face a real chance of experiencing serious harm, at page 137 of the Court Book. The Respondent submits, correctly in my view, that the Tribunal did consider the Applicant's claims made in his written submissions and at the Tribunal hearing and no error is disclosed in the Tribunal's reasons in that respect.
In respect of the fourth claim that the Tribunal failed to "properly and fairly" take into account the Applicant's evidence that his wife's family wanted him dead, the Respondent submits that the Tribunal did consider the claims and integers of claims made by the Applicant in respect to his fears in relation to the opposition of his wife's family to their marriage. Specifically, the Tribunal referred to the claims at pages 128 and 129 of the Court Book, considered the country information in respect of inter-faith marriages, page 132, and made findings that whilst the wife's family were not at all happy that she married the applicant, he had come to no serious harm in the seven years between their wedding in 1995 and their departure for Australia in 2002. See page 136 of the Court Book.
Finally, the Tribunal member was not satisfied that there was a real chance that the Applicant would face serious harm from his wife's family and that appears at page 136 of the Court Book.
Turning now to the claim that the Tribunal failed to "properly and fairly" take into account the country information relating to evidence of 120 cases of rape, assault and other forms of violence; the Respondent submits that the Tribunal did refer to that information in the reasons and any inference the Tribunal did not consider the evidence should not be too readily drawn. I am referred to the decision of WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47].
The Respondent submits further that all of sub-s.430(1)(c) of the Migration Act requires is that the Tribunal set out its findings on those questions of fact which the Tribunal considers to be material for the decision which it made and to the reasons that the Tribunal had for reaching that decision. And that it was not obliged to make findings as to whether it accepted or rejected every allegation made in the course of evidence. I am referred to the decisions of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] also to Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 at [30] and also Davis v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 686 at [35]. The Respondent submits that this evidence was considered and the Tribunal made general findings in respect to the treatment of Christians in India and that appears in pages 136 to 139 of the Court Book.
Finally, in respect to the Applicant's claims that the Tribunal failed to consider that the Applicant was a high profile Catholic Christian and that as such he would be a prime target for people ill-disposed towards Christians; the respondent submits that the Tribunal was not obliged to consider that claim because it was not made before the RRT and did not clearly arise from the evidence before it. (See NABE v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 263 at [58]-[63] inclusive). Specifically, the evidence before the Tribunal indicated nothing more than that the Applicant had travelled to France in 1990 and 2000 and that he had participated in Christian activities in surrounding communities since he was young.
Further, the Tribunal clearly considered the integer of the Applicant's claim to fear persecution based on the conversion of his wife and made findings that the Tribunal member did not consider that there is more than a remote chance that the Applicant would face serious harm from Hindus suspecting that he had made his wife convert (see page 136 of the Court Book).
The Tribunal was not required to consider the Applicant's claim that baptising his children as Christian could pose a serious threat to his life if that were disclosed because that was not a claim made before the Tribunal and did not clearly arise from the evidence before the Tribunal.
The Respondent submits, and I believe correctly, that no jurisdictional error has been disclosed and the application should be dismissed.
I am obliged to counsel for the Respondent for the detailed submissions that have been prepared and in my view they are an accurate summary of the law and clearly set out that the Tribunal did not make a jurisdictional error in considering the Applicant's case. I am mindful of the fact that the Applicant was legally represented but terminated his lawyers' instructions prior to the hearing. I have read through the decision myself in order to satisfy myself that no other jurisdictional error, unnoticed by either party, may appear in the text. I am unable to discern any. I am satisfied that the Tribunal's decision is a privative clause decision as set out in s.474 of the Migration Act and it therefore attracts the protection of s.474 of the Migration Act. Accordingly, the application will be dismissed.
I would comment that this is a case where the Applicant failed to appear and gave no notice that he was not going to appear. The case had been prepared for hearing by the solicitors for the Respondent Minister and their barrister and I accepted the submission that the application should be heard on its merits. There was clearly material available on which the Court could consider the Applicant's case and he had of course been legally represented until less than a month ago.
In my view, it was appropriate to deal with the matter in this way as the Applicant has not appeared, even though I stood the matter down for half an hour in case he was late and satisfied myself that no messages had been received by the Court indicating that the Applicant had been delayed or hindered or otherwise prevented from getting to Court for any reason. There is just no indication at all from the Applicant as to why he is not here.
I will make an order noting that the title of the Respondent Minister has changed.
I am going to dismiss the application and whilst the Refugee Review Tribunal was not originally joined as a respondent, in circumstances there seems to me to be no point in doing so at this stage as the application is going to be dismissed. To require the Tribunal to file a notice of address for service in respect of a matter that is to be dismissed seems to be unnecessary and would achieve nothing accept run up unnecessary costs.
There is an application for costs to be set in the sum of $4,500.00 inclusive of counsel's fees on a party and party basis. I note that the matter has been prepared for hearing as I said and indeed it had to be prepared for hearing. The solicitors for the Respondent wrote to the Applicant well before the hearing and reminded him of the time, date and place of the hearing. They briefed counsel and they had done everything necessary to get the matter ready for hearing on a fully defended basis.
Indeed, until the 11th May, the Respondent's solicitors were not aware that the Applicant was no longer legally represented. Even until this morning the Respondent's solicitors were not aware that the Applicant was not going to attend Court. They had no option but to prepare the matter for a full hearing. The amount of $4,500.00 which is sought is to my mind well and truly within the range and I will order that the Applicant is to pay the Respondent's costs fixed in the sum of $4,500.00.
I will, for more abundant caution, draft the order dismissing the application but I will note that I have dealt with it under Rule 13.03A paragraph (d) and not (c) so that no-one will be under any misapprehensions.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 24 May 2006
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