SZDFX v Minister for Immigration

[2005] FMCA 617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFX v MINISTER FOR IMMIGRATION [2005] FMCA 617

MIGRATION – Review of decision of Refugee Review Tribunal – Indian citizen – BJP Party – Godhra train incident – whether blindly following decision of delegate – bias – applicant’s name incorrect – not attending Tribunal hearing – seeking merits review – weight given to evidence – duty to investigate – no jurisdictional error – privative clause decision – application dismissed.

Migration Act 1958 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283

Applicant: SZDFX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1028 OF 2004

Judgment of: Mowbray FM

Hearing date: 18 April 2005

Date of Last Submission: 18 April 2005

Delivered at: Canberra

Delivered on: 18 April 2005

REPRESENTATION

Advocate for the Applicant: In person

Counsel for the Respondent: Mr GT Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1028 of 2004

SZDFX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from the transcript.  It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 25 February 2004 and handed down on 17 March 2004. 

Background

1. The applicant is a citizen of India who arrived in Australia in

   
   

   August 2003.  On 16 September 2003 he applied for a protection visa and on 28 November 2003 that application was refused by a delegate of the Minister.  The applicant lodged an application for review of the delegate’s decision in the Tribunal on 16 December 2003.

2. By a letter dated 19 January 2004 he was invited to attend a hearing on 25 February 2004.  His response was received by the Tribunal on

   
   

   13 February 2004.  It indicated that he did not wish to come to a hearing and that he consented to the Tribunal making a decision without taking any further action to enable him to appear before it.

3. On 25 February 2004 the Tribunal made its decision which it handed down on 17 March 2004 affirming the delegate’s decision not to grant a protection visa.

Claims before the Department and the Tribunal 

1. The applicant says he was a barber and a beauty shop owner in Mumbai, India.  He is married with two children.  He is a Hindu and a member of the BJP Party which is supported by Shiv Sena and the RSS.  He actively participated in BJP political activities in his constituency

2. His shop and home were located in a Muslim dominated area.  Nevertheless his business was successful.  In late February 2002 the Godhra train incident took place, in which Muslim extremists burnt four train compartments and killed about 70 Hindu pilgrims.  Muslim-Hindu riots broke out affecting the whole country.

3. In mid March 2002 the applicant alleges that his shop was burnt down by Muslim extremists and that he and his family were attacked and severely beaten.  All of his family including his children sustained injuries.  They were warned by the extremists not to report the incidents or they would be killed.  But in spite of the warning, they contacted the police and arrests were made resulting in gaol sentences for some people.

4. He says that since then they have been consistently threatened with death and targeted by Muslim extremist groups.  He identifies the Samajwadi Party and the Muslim League as political opposition parties which support the extremists.  He says that in January 2003 he was again attacked in his shop by a “Muslim mafia group” and beaten severely.  Members of this group threatened to close his business unless he paid a large sum of money.  He says he reported the incidents to the police several times but no protection was given to him or his family.

5. He referred to a more recent bomb blast in Mumbai in which 50 people were killed and 150 injured.  He says this was another act of “Muslim terrorism”.  In his application he said that his family in India continue to receive death threats from the same groups.  The ruling BJP Party is unable to stop the Muslim attacks.  The applicant cannot relocate in India because “Muslim extremists and terrorist groups are everywhere”.

6. The applicant submits that he would live in constant fear of his life if he was in India and does not doubt that he would be killed if he returned. 

Tribunal consideration 

1. The essential elements of the Tribunal’s consideration are set out in the respondent’s submissions:

   8.The Tribunal summarised the applicant’s claims and evidence at RD[Relevant Documents]59 and referred to some country information at RD 60, before coming to its ultimate findings and reasons at RD60-62.  Ultimately, it simply was not satisfied by the material before it that the applicant met the criteria for the grant of a protection visa, which it uncontentiously described at RD57-59.

   9.The Tribunal found the applicant’s claims and allegations “vague”, “very general” and “unsupported”. 

   10.It referred to his failure to identify the Muslim extremists who he claimed to fear, or even whether he meant some particular group or party and also to his similar failure to explain the identity of the “mafia” of which he spoke.  The Tribunal noted the applicant’s claim to be an “active member” of the BJP, but was not satisfied that he was a member of the BJP – as it found lack of detail as to any position held by the applicant within the party, why he joined, knowledge of the philosophy or objects of the party and also a lack of documentation to support the claim of membership.

   11.In relation to specific claims that had been made by the applicant of his shop being burned down (after a train incident in Godhra) by “Muslim extremists” and of he and his family being “severely beaten”, the applicant, the Tribunal found:

   -   a lack of detail as to the identity of the culprits;

   -   absence of documentary evidence that the shop existed or that it was burned down;

   -   lack of detail of any injuries sustained by the applicant or his family and whether there was any hospitalisation;

   -   lack of detail as to who was caught, what they were charged with, whether all were caught or what group they were from.

   12.The Tribunal also found it implausible that, if a few culprits were caught, the applicant would be receiving “constant” threats (as he claimed).

   13.With respect to a claim that money had been demanded from him by Muslim “mafia”, the Tribunal was not satisfied that there was any convention reason (RD61.9-62.1).  The Tribunal there noted that the claim was only that the “mafia” wanted to extort money from him because he had a shop and had money.  As the Tribunal found, that amounted to no more than a motive of “criminal gain”.

   14.Also, the Tribunal found that the independent evidence suggested that the Hindus were in the majority, that the BJP government had been re-elected and that there were reports of violent action (by or with government support) against Muslims (RD62.2-62.5).  This led the Tribunal to find that the independent evidence “gravely undermined” the applicant’s claims (RD62.6), but the decision of the Tribunal did not rest upon any positive finding as to the availability of effective protection.

   15.Rather, the Tribunal’s rejection of the application was based upon it not being brought to the requisite satisfaction by the applicant’s “unsupported allegations” (RD62.7-62.9).  It explained that, as the applicant declined the hearing invitation, its “questions – raised above – remain unanswered and the applicant’s claims remain nothing more then unsupported allegations” (RD62.6).

Consideration

1. The amended application filed on 14 March 2005 asserts two grounds for review with a number of supporting particulars.  I will deal with them in turn.

Ground one

1. The first ground alleges jurisdictional error.  The applicant says that the Tribunal:

   misapplied the express and implied meaning of term “well founded fear” and “refugee” from the UN Convention … The Tribunal did not consider that the definition of refugee required that consideration be given to each separate aspect of a claim of fear of persecution made by the applicant for refugee status.

2. In the most part the particulars amount to the applicant disputing the fact findings made by the Tribunal.  As such they invite the Court to engage in merits review something which is outside its power, as

   
   

   I made clear to the applicant at the hearing. 

3. However, there are a number of the particulars which require further consideration.

4. In the third paragraph of the particulars the applicant says:

   The Tribunal did not go very details about his claims and followed all the particulars of the decision of the DIMIA without giving any consideration of the seriousness of harm.

5. This appears to assert that the Tribunal did not turn its mind to the application and the evidence before it.  Rather, it suggests that the Tribunal blindly followed the decision of the delegate. 

6. A fair reading of the decision of the Tribunal makes it clear that to the extent that it was able to because of the lack of evidence, it did conduct a review quite independent of that of the delegate.  For example,

   
   

   Mr Johnson for the respondent pointed me to passages in the delegate’s decision relating to relocation and the applicant’s delay in applying for protection visa which find no part in the decision of the Tribunal.

7. Furthermore, any assertion of lack of bona fides on behalf of the Tribunal requires clear proof and certainly much more detail in the particulars.  There is nothing before me that would suggest that the Tribunal lacked bona fides in its approach to its task.  If this particular is also asserting that the Tribunal was in some way biased, it fails for the same reason.

8. The second element in the particulars to which I wish to refer concerns the Tribunal having misstated the applicant’s name in a number of places.  At Court Book page 59 the Tribunal added “Patel” to the applicant’s surname and at Court Book page 61 the Tribunal referred to him by a completely different name.

9. Although this indicates a degree of extreme sloppiness, which is most unsatisfactory and at which the applicant could quite rightly take offence, it does not point to any jurisdictional error.

10. It is clear that the Tribunal decision is about the applicant and relates specifically to the claims he made to the Department and to the Tribunal.  These claims are set out at Court Book pages 7-10 in the application for a protection visa.  There is no substantive claim at Court Book page 42 in his application to the Tribunal.

11. An examination and comparison of the claims made at Court Book pages 7-10 with the Tribunal’s summary of the claims at Court Book pages 59 and 61-62 make it abundantly clear, as is indicated by the decision record at Court Book page 56, that this decision is about the applicant in this current case.  The errors in the applicant’s name and incorrect name at Court Book pages 59 and 61 are obviously word-processing errors which should have been avoided.

12. In his final particular for ground one the applicant asserts that he would have been able to give more information to the Tribunal if he could have attended the hearing.  It says that he was unable to attend because he was living in Griffith which is “far away from Sydney” where the hearing was held.  He asserts that he did not know the “implications of not attending hearings”.

13. As I have already indicated, in a letter of 19 January 2004 the applicant was invited to attend a hearing on 25 February 2004.  In that letter the Tribunal said:

    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. 

    Hearing of the Tribunal

    We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the Tribunal to obtain oral evidence from another person or persons.

    [Here the Tribunal sets out the time, date and place of the hearing]

    -   The Tribunal will only change this hearing date for good reasons.  If you think you might be unable to attend the hearing, you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.

14. By a response received on 13 February 2004 the applicant or his agent ticked the box which says:

    NO, I/we do not want to come to a hearing

    I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.

15. It is obvious that the applicant was put on notice that the Tribunal would have difficulty finding in his favour if he did not attend the hearing.  There is no evidence that he contacted the Tribunal and told it that he had difficulty with a Tribunal hearing in Sydney.

16. The applicant cannot complain now that he has not had the opportunity.  As the Full Court of the Federal Court said in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [25]:

    He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined.  Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them.  Conversely, his conduct left it open to the Tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa.

17. It is clear that the particulars asserted under ground one in general go to the applicant’s concern with the merits of the factual decisions made by the Tribunal.  To the extent that they might suggest, if only faintly, some form of legal error there is no substance in them.  Ground one must be rejected.

Ground two

1. Ground two asserts that:

   The Tribunal made a jurisdictional error when it could not afford sufficient weight to the evidence given by the applicant in relation to the Communal riots which was started in which 70 Hindus were burned in the Godhra (Gujarat). 

2. There is abundant authority such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 for the proposition that the weight that is to be given to any material before the Tribunal is a matter for the Tribunal and not for the Court.

3. To the extent that this ground asserts that the Tribunal should have conducted further investigations it is misconceived.  Although the Tribunal has certain powers to obtain additional evidence if it wishes to, “the Act does not impose any duty or obligation to do so” (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).

4. It appears also that the applicant is asserting again although dimly a ground of bias by the Tribunal: “His mind was not open in selecting materials to find the truth.”

5. As the respondent has said there is simply no evidence that the Tribunal decided the matter with a closed mind which it was unable or unwilling to change regardless of what might have been advanced by the applicant.  Similarly there is no evidence which should suggest that a reasonable person might apprehend bias.  In any case any allegation of bias is one that needs to be distinctly made and clearly proven.

6. The last particular under ground two suggests that the Tribunal failed to take into account “many cumulative factors which were important in assessing application for the protection visa.”

7. No details are provided to support this claim.  When it is borne in mind that the Tribunal decision rested on its inability to be satisfied because of the scant evidence before it, the applicant cannot succeed with this assertion.

Conclusions 

1. As I have indicated already, much of the material in the amended application is directed towards disputing the factual findings made by the Tribunal.  I told the applicant at the hearing that this is not something with which the Court could normally interfere.  That would amount to the Court taking over the role of Tribunal and engaging in merits review.

2. The applicant was invited to attend a hearing and declined to do so.  As a consequence the Tribunal was left with many questions which went unanswered.  It therefore could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

3. In view of s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal was entitled to proceed to make a decision or to finalise its review without hearing further from the applicant.

4. I invited the applicant at the hearing to help me in identifying any legal errors.  But apart from essentially reiterating his dispute with the findings of fact of the Tribunal, he was unable to assist. 

5. The respondent through her counsel Mr Johnson has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed.  I agree.

6. It is apparent that the Tribunal was unable to reach the state of satisfaction required under the legislation and the Convention to allow it to make a decision in the applicant’s favour.  On the material before the Tribunal this was reasonably open to it.  I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to this decision.  I find the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

7. In addition the decision of the Tribunal was a bona fide attempt to exercise its powers.  The decision clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.

8. In the circumstances I dismiss the application.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:  K Thynne

Date:  1 June 2005