SZDNY v Minister for Immigration - [2004] FMCA 1051

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNY v MINISTER FOR IMMIGRATION

[2004] FMCA 1051

MIGRATION – RRT decision – Christian from India – did not attend Tribunal hearing – no error found.

Migration Act1958 (Cth), ss.422B, 424A, 426A, 483A
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZDNY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1389 of 2004

Delivered on:

17 December 2004

Delivered at:

Sydney

Hearing date:

17 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr R. White

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1389 of 2004

SZDNY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act1958 (Cth), challenging a decision of the Refugee Review Tribunal dated 31 March 2004 and handed down on 27 April 2004. The Tribunal affirmed a decision of a delegate refusing to grant Protection Visa to the applicant.
The Court's jurisdiction under s.483A is: “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The jurisdiction of the Federal Court is its judicial review jurisdiction under s.39B of the Judiciary Act1903 (Cth) subject to limitations under Part 8 of the Migration Act. Those limitations, as interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, mean that this Court has no power to give relief unless it is satisfied that the Tribunal made a jurisdictional error. If such an error cannot be found, the Court has no power to set aside the Tribunal decision and send the matter back for rehearing.
The present applicant's application for a visa was made in December 2003 shortly after he arrived in Australia on a four month business visa. The claims he made in his visa application were summarised by the Tribunal, in my view correctly, in the Tribunal's reasons:
According to his application to the Department, the applicant was born in Kerala in southern India and is aged forty-three. He gives his occupation as salesman. He claims protection on the ground of his Christianity and says that he faces persecution by members of the fundamentalist Hindu group, the Rashtriya Swayam Sewak (RSS).
The applicant states that he and his family belong to the Malankara Syrian Catholic Church and that he regularly attends Sunday services; as a teenager he was a member of the Malankara Christian Youth Movement (MCYM); he held the position of Youth Secretary and, between 1975 and 1977, was Vice-President; later he was made a ‘life patron’ and coordinator of the church for Kerala. He was responsible for preaching and for promoting the religion and says that he converted ‘some Hindu youths’ to Christianity. He says that, as a result of his activities, members of the RSS who lived near his home warned him to stop preaching and converting Hindus or he would be killed. He says there was a ‘series of isolated incidents’ and threats to his life but he paid them little attention. Then, in November and December 1982, he was attacked by ‘about five men’ from the RSS, beaten severely and left unconscious; he spent two weeks in hospital recovering from his injuries. He reported the attacks to the police but they took no action.
In 1983, after graduating from college, the applicant went to work in Oman but he says that he maintained contact with his church and the MYCM and he returned to India for holidays; each time he returned home he would attend church services and he supported the church financially. In December 2002 his contract in Oman came to an end and he returned to India to live and resumed his involvement in the church including his preaching. In October 2003 he received a ‘tip off from a very reliable source’ that the RSS intended to kill him because of his continued preaching and spreading the word of Christianity. He claims that, as a leader and preacher for his religion he will continue to preach in public if he returns to India and that he will be harmed or even killed is he does so.
The delegate assessed these claims against a range of information from sources about conditions facing Christians in India relevant to the applicant's claims. In a record of reasons which was given to the applicant, the delegate said that the applicant had provided no evidence of any kind to substantiate any of his claims, and that there were avenues in India by which he could seek redress for any real or perceived wrongs that he had experienced. The delegate said that, considering all the elements in the applicant's application, they did not establish a claim to a well-founded fear of persecution.
The applicant appealed to the Refugee Review Tribunal with the assistance of a migration agent, who was named as an authorised recipient for correspondence. On 4 March 2004 the Tribunal wrote to the applicant informing him that “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.” It invited the applicant to attend a hearing before the Tribunal on 30 March 2004, and also requested information about his overseas travel. A response from his agent provided a table detailing extensive overseas travel between 1984 and 2003.
The agent also returned a form signed by the applicant which indicated that he wanted to attend the hearing. However, the Tribunal notes that he did not appear on the date specified, with or without his agent, and that neither he nor his migration agent contacted the Tribunal to explain why he did not appear or to ask for the hearing to be listed at another time. The Tribunal indicated that it was satisfied that the Tribunal had discharged its obligation to provide the applicant with the opportunity to give evidence before it, and that it decided to proceed to determine his claim on the basis of the written information before the Tribunal without taking any further action. I am satisfied that this was a course legally open to the Tribunal pursuant to s.426A of the Act.
I should note that in its reasons, the Tribunal makes an error in suggesting that the invitation invited the applicant to attend on the

29 March 2004 and that he did not appear on the 29 March. However, this was an immaterial error, since it is clear that the invitation specified the 30 March 2004 and a hearing information form reproduced in the Court Book indicates that in fact the hearing was listed on the 30 March and that there was ‘No show applicant’.
The Tribunal, in a statement of reasons which in my view reads as a moderate and balanced assessment of the applicant's claims, examines information concerning the situation facing Christians in Kerala and notes that there is information about violent attacks on Christians in India and the government's sometimes ineffectual responses. The Tribunal concludes that:
“depending on the circumstances, a Christian in India may have a well-founded fear of persecution within the meaning of the convention. However, I am not satisfied, on the evidence before me, that the applicant in this case is such a person.
The applicant’s claims amount to a series of assertions and generalised statements with almost no detail at all and without any supporting evidence. While I do not necessarily agree with all the reasons given by the delegate in his decision, the applicant was nevertheless on notice of those reasons. He was also put on notice by the Tribunal that it was unable to make a decision in his favour on the material before it. Despite this, he has not provided any further information to counter the delegate’s findings or otherwise support his claims, and he has declined the opportunity to give evidence before the Tribunal. This is despite his statement in his application for review that one of his reasons for disagreeing with the delegate’s decision is his use of country information on which the applicant was not given an opportunity to comment.
While it is the applicant’s right to exercise or waive his right to an oral hearing as he sees fit, and to provide such evidence in support of his claims as he sees fit, in the absence of further evidence and the opportunity to test his claims on oral evidence, I have only the evidence before me on which to determine his application.
The Tribunal then points to uncertainties in the narrative provided with his visa application. It repeats its conclusion that:
“even if I accept that the applicant is a committed and practising Christian as he claims, I am not satisfied that the evidence before me satisfies a finding that merely being a Christian in India gives rise to a well-founded fear of persecution.”
And concludes:
“In the absence of an opportunity to test his claims generally and in particular their truthfulness, at an oral hearing, I am not prepared to accept, merely because he asserts it to be so, that the applicant has a well-founded fear of persecution for the reason he claims.”
In the applicant's application to the Court for judicial review, the following propositions are made:
The applicant claims:
1. The Refugee Review Tribunal failed to give me procedural fairness as required under the Migration Act. This constitutes jurisdictional error. Independent country information used in the decision was never brought to my attention.
The grounds of the application are:
1.   The Tribunal failed to exercise its jurisdictions fairly because it failed to give me an opportunity to comment on information which forms part or whole of the Tribunal’s reasons for making the decision.
2.   The Tribunal failed to make any findings to assess what religious changes might occur in India in the foreseeable future.
3.   The Tribunal erred in law by failing to assess whether my fears of being persecuted for reasons of my religion, Christianity, were well-founded in the reasonably foreseeable future.
I consider that these claims raise no ground of substance. The allegation that there was a failure to give procedural fairness is not particularised and the Court is unable to assess whether it has any meaning. The suggestion that independent country information was used and not brought to the applicant's attention is not given any particularity, and I do not know what is being referred to by “country information used in the decision”.
I have not been shown evidence that any such information was used by the Tribunal adversely to the applicant, nor that there was any such information before the Tribunal which the applicant was not given an opportunity to meet. In any event, as counsel for the Minister submits, s.424A read with s.422B, provides the exhaustive statement of the applicant's right to be given an opportunity to comment upon adverse information, and that right does not apply to information which is not specifically about the applicant (see s.424A(3)(a)).
The further allegation in the grounds of the application that the Tribunal did not address “the foreseeable future” or “the reasonably foreseeable future” is factually incorrect. The Tribunal properly instructed itself at the beginning of its reasons that:
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
A fair reading of the Tribunal's reasons, in my opinion, shows that it has done this. I am therefore unable to find any substance in the complaints made in the application.
The applicant was directed, at the first hearing date in this Court held in August 2004, to file an amended application with particulars and any evidence proposed to be relied upon by 14 October 2004. He was also directed to file and serve a written legal submission before the hearing. Neither of these steps was followed by the applicant, who has appeared today.
The hearing in his case had been adjourned once to allow the Court to arrange for an interpreter to be in attendance in his preferred language. The applicant has had the assistance of such an interpreter today.
The applicant made no additional submission to me orally, except to request that I help him to go to the Refugee Review Tribunal again. As I have explained to him, I am unable to make that order in the absence of a serious legal error being found in the proceedings of the Tribunal. As I have explained, I have not been satisfied that this has occurred and I therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4500.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 January 2005