SZDGV v Minister for Immigration
[2006] FMCA 504
•6 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDGV v MINISTER FOR IMMIGRATION | [2006] FMCA 504 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – failure to attend Tribunal hearing – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 & 441 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | SZDGV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1071 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms R Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1071 of 2004
| SZDGV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 March 2004 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants are husband and wife who are citizens of India. No specific Refugees Convention claims were made by or on behalf of the applicant wife and, for convenience, further references to ‘the applicant’ are to the applicant husband. The applicant arrived in Australia in August 2003 and lodged an application for a protection visa on 2 September 2003.
In the protection visa application the applicant claimed that he and his family had suffered persecution in India at the hands of Muslim extremists and Muslim political parties because of his membership of and support for the BJP and his activities on behalf of victims of the Gujarat train massacre. The application was refused by a delegate of the first respondent and the applicant sought review by the Tribunal by application received by the Tribunal on 1 December 2003. It is relevant to note that in the review application the applicant provided the same home and mail address and also nominated an authorised recipient, a migration agent, to receive correspondence and to act on his behalf.
The applicant took issue with the delegate's decision and indicated that a detailed submission would be filed later. No such submission was filed. On 23 December 2003 the Tribunal wrote to the applicant at the address nominated as his home and mail address and also sent such letter to the authorised recipient as named and to the address provided in the review application.
That letter invited the applicant and his wife to attend a Tribunal hearing on a date, time and place specified. The letter advised the applicant that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice. The letter stated that it included a response to hearing invitation form and invited the applicant to send any new documents or written arguments he wanted the Tribunal to consider by a specified date.
It is apparent from the Court Book that a letter from the Tribunal addressed to the applicant at his home and mail address was returned to sender on 25 February 2004. However, it is also apparent that the Tribunal received in February 2004 a response to hearing invitation, completed with the name of the applicant and details of his authorised recipient and said to be signed on his behalf and with the consent of himself and all family members included in the application, which indicated that the applicant did not want to come to a hearing. The form states:
I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me or us to appear before it.
In its reasons for decision the Tribunal set out the fact that it had written to the applicant inviting him and his wife to a Tribunal hearing and that on 13 February 2004 it was advised in writing that the applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking further action to allow or enable them to appear before it.
The Tribunal described the material it had before it, consisting of the Department's file including the protection visa application and delegate's decision record and other material and summarised the applicant's claims in his protection visa application and the fact that no further evidence had been provided to the Tribunal. It found that the presentation of the applicant’s claims was vague and lacking in detail in several important respects, such that the Tribunal was unable to establish all the relevant facts. It observed that the applicant had been put on notice by the Tribunal that the Tribunal was unable to make a favourable decision on the information before it, but had not provided further information in support of his claims despite undertaking to do so, nor had he given the Tribunal an opportunity to explore aspects of his claims with him at a Tribunal hearing.
The Tribunal detailed a number of relevant questions which were left unanswered on the state of the evidence before it, in particular the limited evidence and details as to membership or activities in the BJP, the vagueness of the claims about harm suffered from Muslim extremists, in particular in relation to the claim that the applicant was beaten up in his shop in March 2002 and the absence of detail about claims of subsequent threats to the applicant's life. In relation to a claim that on one occasion the applicant had been stopped by a group of armed Muslims who beat him up and demanded a ransom and warned him that if he did not pay his family would be killed, the Tribunal had regard to the absence of detail about this claim and whether the applicant sought assistance, whether he paid the money and why, if his family was threatened, he left family members such as his children in India, or what measures he took to protect them. There was also an absence of detail about claims that family members had received ongoing threats to their lives. The Tribunal also had regard to the absence of documentary evidence to sustain a claim about the lack of an ability on the part of the authorities to provide adequate protection.
The Tribunal concluded that on the basis of the vagueness and lack of necessary detail in the evidence before it, it was unable to be satisfied that the applicant was or is a member of the BJP, that he was ever attacked by Muslim extremists or that he and his family members were ever threatened by them. It found that the applicant did not have a well-founded fear of persecution in India for a Convention reason.
As the fate of the applicant wife's application depended on the outcome of her husband’s application, the Tribunal found that it followed that she could not be granted a protection visa.
The applicants sought review by application filed in this court on
13 April 2004. They filed an amended application on 20 January 2005 and a further amended application on 21 February 2005. The applicant has not filed written submissions, but made short oral submissions in court today. The ground relied upon in the further amended application is that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa. The consideration that it is said that the Tribunal failed to take into account is not clearly identified in the further amended application. Nor was it identified in oral submissions today when I asked the applicant what he meant by this ground. He indicated that he had not been able to submit documentary evidence to the Tribunal, that the Tribunal had not considered his claims and that he could not attend the Tribunal hearing. Nonetheless, the court has considered all of the matters raised under the heading of particulars in the further amended application and the material before me in considering whether a jurisdictional error has been established.
The first issue raised by the particulars in the further amended application is a reiteration of the applicant's claims to fear persecution in India based on his membership of the BJP and political opinion. It is claimed that the applicant had sufficient documentary evidence to establish this persecution but the Tribunal overlooked that and made a decision in bad faith. However, it is apparent from the Tribunal reasons for decision that it understood and considered the applicant's claims to fear persecution based on his membership in and activities with the BJP and dealt with that claim insofar as possible on the material before it.
Insofar as the applicant seeks merits review, merits review is not available in this court. It is clear from the subsequent paragraph in the further amended application that the applicant is not contending that he provided documentary evidence to the Tribunal which it failed to take into account. He refers to his claims in the protection visa application; such claims were considered by the Tribunal as indicated above. His contention that he now has sufficient documentary evidence to establish persecution does not establish jurisdictional error on the part of the Tribunal, which is obliged to consider the application on the material before it at the time of the decision.
Insofar as it is contended that the Tribunal made a decision in bad faith, there is no basis for such an allegation on the material before the court. It is well established that a party alleging bad faith or bias on the part of a decision maker carries a heavy onus and that such an allegation must be distinctly made and clearly approved: see Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and Kirby J at [127].
Insofar as the applicant's contentions about documentary evidence are intended to raise a claim that the Tribunal was under some obligation to inquire or to allow the applicant further time to provide documentary evidence, there is no basis for such contentions. The Tribunal cannot be said to have fallen into jurisdictional error because it did not have regard to documents that were not placed before it. As Gummow and Hayne JJ stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 187:
It is for the applicant to advance whatever evidence or argument [he] wishes to advance in support of [his] contention that [he] has a well-founded fear of persecution for a Convention reason.
The Tribunal must then decide whether that claim is made out. There is no evidence before the court to suggest that the applicant communicated with the Tribunal and sought, for example, additional time in which to obtain documentary evidence or make submissions. The only communications of which there is evidence is the completed application for review and completed response to hearing invitation form.
The applicant annexed a number of documents to his further amended application in relation to the situation in India. However the court does not have jurisdiction to determine whether or not he is a refugee, and the material provided (including documents in English which are dated after the Tribunal decision) does not assist the court to determine whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.
The applicant contends generally, without particularisation, that the Tribunal's satisfaction that he was not a refugee was not based on reasoning which provided a rational or logical foundation for this belief. No particulars are provided of this claim and there is nothing in the material before the court to support such a contention. The Tribunal's lack of satisfaction was based on the vagueness and lack of detail in the applicant's claims and its findings in that respect were open to it on the material before it.
The applicant also contends generally that the Tribunal did not observe the Migration Act 1958 properly in making the decision. No failure to comply with the procedures under the Migration Act 1958 has been established. In particular, and this is a matter that is raised later in the amended application, it has not been established that the Tribunal failed to provide the proper notification of the Tribunal hearing.
The applicant states in his further amended application that he did not get an opportunity to attend the hearing because he was not informed by the Tribunal properly and the invitation letter was not served properly. However, as set out above, the applicant provided a home and mailing address to the Tribunal and also appointed an authorised recipient to receive correspondence and act on his behalf. The Tribunal properly invited the applicant to a hearing by its letter dated
23 December 2003 consistent with its obligations in section 425 and 425A of the Migration Act 1958.
The notice of the invitation to appear was given to the applicant by one of the methods specified in section 441A of the Act. Pursuant to s.441C(4) of the Act, the applicant is taken to have received such document. The applicant contends that the hearing letter was not served properly and there is evidence of an envelope being returned to the Tribunal which was addressed to the applicant's home address and mailing address. However the letter of 23 December 2003 was also sent to the applicant's nominated authorised recipient and migration agent at the correct address (see section 441G(1) of the Act). Critically, the Tribunal received a completed response to hearing invitation in which it was indicated that the applicant did not wish to attend a hearing.
Insofar as the applicant appeared to take issue with the conduct of his migration agent, there is no evidence before the court to support such a claim or to establish that the Tribunal failed to comply with its obligations either under the Migration Act 1958 or in terms of procedural fairness (whatever the effect of section 422B of the Act) to notify the applicant of the Tribunal hearing. In light of the return of the completed response to hearing invitation form, it is clear that the applicant received, through his authorised recipient, the hearing invitation.
Neither procedural fairness nor the provisions of the Migration Act 1958 require that a hearing actually be conducted. It has not been established that the Tribunal failed to meet its statutory obligation to invite the applicant to a hearing or that it erred in deciding the application for review without taking oral evidence from the applicant when he declined the invitation to the hearing.
Insofar as the applicant takes issue with the Tribunal's use of independent information, claiming that he did not get adequate particulars or an opportunity to respond to the substance of the information, this contention is misconceived, because the Tribunal did not refer to any independent information in its reasons for decision. In any event, see s.424A(3)(a) in relation to independent information generally.
The applicant also contended in the context of his complaint about the lack of an adequate opportunity to respond to independent information that he does not speak, read and write English and has poor English. I note, however, that the protection visa application and the application for review were completed in English and that the applicant had appointed an authorised recipient and migration agent to receive correspondence and to act on his behalf. The response to hearing invitation form was also completed in English. In the circumstances, there is nothing to establish any jurisdictional error on the part of the Tribunal arising from the applicant's own lack of ability in the English language.
The final contention in the further amended application is that the applicant did not submit a transcript of the Tribunal hearing, and when it was available he would submit it. This claim bears no relationship to the facts of this particular case as no Tribunal hearing was conducted.
The applicant's oral submissions took issue with his personal situation. However, as I indicated to the applicant, this is not a rehearing and merits review is not available in this court. As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 April 2006.
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