SZDSL v Minister for Immigration
[2005] FMCA 162
•24 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDSL v MINISTER FOR IMMIGRATION | [2005] FMCA 162 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 426A, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Associated Provincial Picture Houses Ltd v Wednebury Corporation [1948] 1 KB 223
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 68 ALR 407
Eshetu v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 474
Singh v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 453
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) [2004] FCAFC 263
Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 64 ALD 289
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
| Applicant: | SZDSL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1664 of 2004 |
| Delivered on: | 24 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 17 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
There was no appearance by or on behalf of the applicant.
| Solicitors for the Respondent: | Ms N McLaughlin of Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1664 of 2004
| SZDSL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 2004 and handed down on 27 April 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 November 1998 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDSL”.
The applicant, who claims to be a citizen of India, arrived in Australia on 3 June 1998. On 13 November 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 28 November 2003 the delegate refused to grant a protection visa and on 22 December 2003 the applicant applied for a review of that decision.
According to his application for a protection visa, the applicant was born in November 1974 in Hyderabad, India and is an Indian national. He is a Muslim. He speaks, reads and writes English and speaks Urdu. He claimed he completed seventeen years of education and holds a Bachelor of Commerce from Osmania University, Hyderabad.
The applicant claimed he had a well founded fear of persecution in India on the basis of his Muslim religion. His claims were set out in a statement provided in support of his protection visa application and were reproduced in full in the Tribunal’s reasoning for decision (Court Book pp.63-64) (“CB”).
The Tribunal’s findings and reasons
On 13 February 2004 the Tribunal wrote to the applicant inviting him to attend a hearing on 26 March 2004 (CB p.54). The invitation letter advised the applicant that if he failed to attend the hearing the Tribunal could make a decision on his case without further notice. A copy of the hearing invitation was also sent to the applicant’s current adviser, Mr Rasant Selliah. On 8 March 2004 the applicant’s adviser telephoned the Tribunal indicating that he had been trying, unsuccessfully, to contact the applicant. On 18 March 2004 the Tribunal telephoned the applicant on his mobile telephone and there was no answer. The applicant did not appear before the Tribunal on 26 March 2004. Pursuant to s.426A of the Act the Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal found that:
“Given the generality of the applicant’s claims, without more information it is difficult to know what significance can be attached to [the applicant’s] assertions.
The applicant was put on notice by the delegate’s decision that he has provided no details and has not substantiated his claims. The applicant has not sought to challenge the delegate’s decision in a meaningful way. He has not provided any further information to the Tribunal which would enable it to be satisfied that he has suffered persecution in the past; that his fear of persecution in the future is owing to a Convention ground or that his fear is well-founded.
Overall, in view of the insufficient information and lack of detail contained in the applicant’s claims, the Tribunal is unable to be satisfied that the applicant has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.” (CB pp 66-67)
Application for review of the Tribunal’s decision
On 1 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). At a directions hearing on 9 September 2004 before a Registrar of this Court, the applicant consented to Short Minutes of Order requiring him to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 22 October 2004. The applicant did not comply with those orders and the matter was listed for a non compliance hearing before me on 7 December 2004. On that date I ordered the applicant to file and serve a proposed amended application giving complete particulars of each ground of review being relied upon and any additional affidavit evidence by 17 January 2005. On
14 January 2005 the applicant filed an amended application which contained the following grounds:
“1.The Tribunal made jurisdictional error as it made critical findings based on no evidence (alternatively it was Wednesbury Unreasonable as it was based on scant evidence)
Particulars
On page 7 of its decision the Tribunal says:
‘The applicant has provided no information or details as to why exactly he or his father had been suspected of supporting Muslim extremists, why the authorities had frequently searched his family and has not indicated what ‘Muslim movements’ ‘some of his relatives’ were involved in.’
On page 5.30 of the RRT decision para 5 & 6 the Tribunal refers to applicant’s claim which says:
‘5 … The authorities frequently visited and searched my family house. Because some of my relatives were involving with Muslim movements in and around Hyderabad, the authorities began to take increasing interest on my family members.’
‘6. … The militant groups like PWG and CPI(ML) with the aim of fighting against the state government had been working in the state …’
2.The Tribunal made jurisdictional error as it made critical findings based on no evidence (alternatively it was Wednesbury Unreasonable as it was based on scant evidence)
Particulars
On page 7 of its decision the Tribunal says:
‘… He has not provided any information regarding the nature of the abuse, harassment and the mistreatment he claims to have been subjected to and when and by whom exactly he had been threatened with death.’
On page 5.60 of the RRT decision para 9 the Tribunal refers to applicant’s claim in this regard:
‘9. … Majority of the people were Hindus where I live along with my parents. Several times I was abused and harassed by fellow Hindu youngsters and neighbours. During the Habri Masjid demolition period I was humiliated and mistreated by RSS and VHP activists. They often stopped me on my way to home they abused me. They started questioning about my involvement with Naxalites and Muslim extremists. Finally they said that they would kill me if they see me again.’
It is clear from the above that it is the RSS and VHP activists who threatened me with death. Details about abuse and harassment has also been provided, therefore there is no evidence or basis for the Tribunal’s findings in this matter.
3.The Tribunal made jurisdictional error as it failed to deal with an important claim of the applicant.
Particulars
His claim that his father’s business was severely affected was not dealt by the Tribunal.
On page 5 of its decision the Tribunal says in para 4:
‘4. … Unfortunately my father’s business was severely affected wit the religious attacks and threats of Hindu groups and authorities suspicion. …’
4.The Tribunal made jurisdictional error as it made critical findings based on no evidence (alternatively it was Wednesbury Unreasonable as it was based on scant evidence)
Particulars
On page 7.50 of its decision the Tribunal says:
‘The applicant claims that on one occasion he was taken away from his home by five men in civilian clothing and was subsequently questioned, interrogated, and assaulted several times. However, he has not stated when this incident occurred, what the nature of the interrogation he was subjected to was, how seriously he was assaulted and why and how he had been released.’
However on page 5 in para 8 the applicant has answered many of the questions raised:
‘8. … On one occasion, five men in civilian dress came to my home and forced me into their jeep. They took me to the remote police station and I was interrogated. They beat me severely with batons. I was stopped, sidelined, questioned, interrogated and assaulted several times. The authorities used rude language and no respect to the Naxalite sympathisers.’
As to when the incident happened the applicant in para 6 & 7 referred to his being a student in Osmania University and para 8 is a continuation of that and therefore the incident obviously took place while he was a student at the University.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (“Dranichnikov”).
The hearing
This matter was listed for hearing at 10.15 a.m. on 17 February 2005. However, there was no appearance by the applicant at that time. At 10.30 a.m. the matter was called three times outside the Court and there was still no appearance by the applicant. I note there was no message received at the Court by the applicant or his representative advising that the applicant had been delayed or required an adjournment of the hearing. I am satisfied that when the applicant appeared before me at the non compliance hearing clear instructions were given to him as to the time and date of the final hearing together with a location map of the Court. I see no reason therefore why I should adjourn the matter. Pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth), in the absence of the applicant at the scheduled hearing, I intend to proceed with the hearing generally.
Before me I have the Court Book prepared, filed and served by the respondent on 24 September 2004, the applicant’s amended application filed and served on 14 January 2005 and the respondent’s written outline of submissions filed and served on 16 February 2005. The applicant in these proceedings is a self represented litigant who has failed to comply with Court orders or attend the Tribunal oral hearing or the substantive hearing in this Court. However, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.
Submissions
Ms McLaughlin, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)Grounds 1, 2 and 4 were expressed in identical terms, claiming that the Tribunal erred jurisdictionally in that it made critical findings based on no evidence, or in the alternative, acted unreasonably in a Wednesbury sense in basing its decision on scant evidence: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (“Wednesbury”). Grounds 1, 2 and 4 were particularised with excerpts from the Tribunal’s reasons for decision and references to the applicant’s factual claims. In the respondent’s submission, the particulars appeared to be an attempt to persuade the Court to enter into impermissible merits review. In the particulars to these grounds, the applicant appeared to suggest that the Tribunal accepted his claims simply because it set them out in its decision. This is not sustainable in the sense that reference to a factual assertion does not, of itself, indicate the Tribunal accepted the claims. On the contrary, it was clear the Tribunal found the applicant’s claims as set out to be too vague and general for it to be satisfied that he had a well-founded fear.
The respondent contended that the Tribunal’s conclusion is not surprising given the applicant:
i)provided no further evidence than had been rejected by the delegate notwithstanding his indication in his application to the Tribunal that reasons for making the application would be provided ‘as soon as possible’, and
ii)did not attend the Tribunal hearing.
In relation to the assertion that there was no evidence to support the Tribunal’s decision, the applicant appeared to take issue with the Tribunal’s findings of fact. Review of the merits of the Tribunal’s decision is not available to this Court. Insofar as this complaint may be seen as taking issue with the underlying rejection by the Tribunal of the credibility of the applicant, findings in relation to credibility are matters of fact for the Tribunal par excellence: see Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”). The Tribunal identified and dealt with the totality of the applicant’s claims. However, on the paucity of evidentiary material before it and the vague and generalised nature of the applicant’s claims, the Tribunal simply did not reach a state of satisfaction as to the existence of the protection obligations. Further, the Tribunal correctly identified the proper legal test for persecution and reached a factual conclusion supported by a consideration of the relevant evidence placed before it.
In respect of the claim of Wednesbury unreasonableness, there was no apparent level of irrationality or manifest deficit in logic in the Tribunal’s decision which would indicate that the decision was deficient in the Wednesbury sense. Moreover, it has been variously observed by the High Court in Eshetu v Minister for Immigration & Ethnic Affairs and the Federal Court in Singh v Minister for Immigration & Multicultural Affairs that, provided a Tribunal has some basis for its conclusions, its decision could not be impugned as unreasonable, particularly where the particular complaint against the Tribunal’s decision focuses specifically on the weight it afforded to certain evidence, which appears to form the basis of the applicant’s claim in this case.
b)In respect of ground 3, the applicant claimed that the Tribunal erred in that it ‘failed to address an important claim of the applicant, being that [the applicant’s] father’s business was severely affected [by] religious attacks and threats of Hindu groups and authorities’ suspicions’. The Tribunal decision made express reference to the applicant’s claim that his father’s business was seriously affected. The Tribunal was clearly aware of the claim and it was dealt with in the Tribunal’s finding that it simply could not be satisfied on the material before it that the applicant had a well-founded fear of persecution for a Convention reason. That the Tribunal did not make an express finding on this particular claim does not remonstrate a jurisdictional error based on failure to make an express finding on a critical claim of the type referred to in Dranichnikov per Gummow and Callinan JJ at [23]-[24] and Kirby J at [87]-[89]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) at [56]-[63].
In any event, the applicant’s claim that ‘his father’s business was severely affected’ was properly characterised as a factual claim or supporting evidence as opposed to an integer of the application. The putative adverse effect of the religious attacks on the applicant’s father’s business does not constitute a claim which the Tribunal was obliged to deal with specifically, but rather represented a further factual claim in support of the applicant’s claim of persecution for reasons of his religious beliefs: Paul v Minister for Immigration & Multicultural & Indigenous Affairs.
Reasons
A review of the Court Book, including both the delegate’s and the Tribunal’s decisions, indicates that the applicant has not prosecuted his case. The applicant has depended upon his initial application supported by a page and a half typed statement setting out his claim of persecution. However, the applicant failed to attend the Tribunal hearing or supply the Tribunal with any additional supporting material in respect of his claim. Since filing his application for review in this Court, he has failed to comply with Court orders in respect of the filing of documents and the attendance at Court when required. The exception to this was the filing of the amended application as directed by me at a non compliance hearing in December 2004 where it was made very clear to the applicant that his failure to file an amended application in accordance with the orders made that day would provide the respondents with an opportunity to seek to have the matter dismissed on the grounds of non compliance in accordance with the Court Rules.
The applicant has clearly received some assistance in the preparation of the amended application. However, despite this, three of the grounds are repetitious in nature as they are expressed in identical terms although the particularisation is drawn from different sections of the Tribunal’s decision. Although not expressed in this matter, grounds 1 , 2 and 4 appear to be seeking a merits review which is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang.
The applicant also claimed the Tribunal made a wrong finding of fact. In a number of incidences the applicant claimed the Tribunal’s findings of fact were wrong and other incidences suggested there was no evidence or basis for the Tribunal’s finding in the matter. There is no error in law in making a wrong finding of fact: Abebe v Commonwealth of Australia at [137]. When the applicant was provided with a forum to correct any of these alleged errors in fact finding, the applicant declined to attend the Tribunal hearing and therefore denied himself of the opportunity to rectify the perceived errors. Clearly, the applicant would have been aware of the areas that the Tribunal was examining because these issues were raised by the delegate in its findings and the applicant was on notice that these issues were in contention.
The inconsistencies and lack of evidence raised doubts in the Tribunal’s mind as to the credibility of the applicant which again remained without rectification because of the applicant’s failure to attend the hearing or provide the Tribunal with additional information as requested. The Tribunal’s findings in relation to credibility are matters of fact par excellence: Durairajasingham per McHugh J at [67].
In grounds 1, 2 and 4 there is a claim of Wednesbury unreasonableness, argued in the alternative. None of these claims are particularised to identify where the Tribunal’s decision is either irrational or deficient in logic. On the face of the scant material provided in support of the application, the argument that the conclusions drawn by the Tribunal from those facts are irrational or illogical is not demonstrated. The factual information to establish that the decision maker had fallen into that error is not provided and the argument is unsustainable.
In respect of the applicant’s claim in ground 3, there is clearly a misreading or misunderstanding by the person preparing these pleadings. The applicant makes reference to his father’s business in paragraph 4 of his statement. That statement was reproduced in the Tribunal’s decision and, to the extent that the information was available, it responded to it in its findings. I accept the respondent’s submission on this point and find that ground 3 is unsustainable.
This case fails because the applicant has not prosecuted the matter and the decision makers have been forced to consider the application on the minimum of information. On the material provided, I do not find that the Tribunal has made any error in law or jurisdictional error in its decision making process.
Conclusion
For the reasons set out above, the grounds in the application lodged on 1 June 2004 and amended on 17 January 2005 cannot be sustained and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 February 2005
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