SZECT v Minister for Immigration - [2005] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECT v MINISTER FOR IMMIGRATION

[2005] FMCA 132

MIGRATION – RRT decision – Indian fearing persecution from political conflicts – not shown file note of conversation with Dubai employer – no prejudice found.

Migration Act1958 (Cth), ss.422B, 424A, 425, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 62
Pfizer Pty Ltd v Birkett (2001) 112 FCR 305
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicant:

SZECT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2453 of 2004

Delivered on:

2 February 2005

Delivered at:

Sydney

Hearing date:

2 February 2005

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J Bird

Solicitors for the Respondent:

Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2453 of 2004

SZECT

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 Act 1958 (Cth) seeking review of the Refugee Review Tribunal dated 25 June 2004 and handed down on 22 July 2004. The Tribunal affirmed a decision of a delegate refusing a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction is a general judicial review jurisdiction subject to limitations under

Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and remit the case for further consideration unless I am satisfied that there has been a jurisdictional error made by the Tribunal.
The Court does not have power to consider the merits of the factual assessments made by the Tribunal and to remit the matter merely on the basis that it disagrees with that assessment or that it has sympathy for the applicant and considers that his circumstances should be considered again.
In the present case, the applicant entered Australia on 6 December 2003 on a student visa and applied on 12 January 2004 for a protection visa. He does not seem to have received assistance from a migration agent or lawyer at any stage in his proceedings including in this Court.
In a statement attached to his protection visa application he indicated that he was an Indian national of the Christian religion, who had been brought up in Kerala State and had received an education including a Bachelor of Commerce degree and Post Graduate Diploma in Computer Applications and qualifications as a Chartered Accountant. He said that most of his family were active supporters of the leading political party, CPI(M), which the Tribunal understood to mean the Communist Party of India (Marxist), and that he was a member of youth organisations supporting that party since he had started his studies at colleges.
As elaborated in a written statement to the Tribunal, he claimed that he had fears from living in India arising from his involvement in an incident in April 2001, in which members of an opposing party, the BJP, had disrupted a procession organised by the CPI(M) and had attacked members of his party. He said:
It was very planned operation by using knives, sword, bomb, etc. Finally, they threw bomb towards DYFI members. One DYFI member, Mr Vincent aged 24 years, murdered on the spot. And other four members also injured in the incident. All of us admitted in the hospital. As I was a CA student for the time being they wanted to cut off my right hand. Fortunately, I escaped with little injuries by the grace of God. Police arrested 10 members of BJP soon but they were released after the remand period by using the political influence. Consequently they created threats to my personal safety. Then I forced to shift from my home town to Mysore, Karnakata State. After I left home, rivals came there to threaten my family also. They might kill parents if they were not telling them where I was. When I knew about their plan to attack me again in Mysore, I was compelled to move from there also.
The applicant claimed that following that incident he developed a concern about remaining in India and obtained employment in Dubai, which he held from July 2001 to December 2003 as an accountant. In his statements to the delegate and to the Tribunal he then narrated various aspects of his employment in Dubai which he claimed exposed him to discrimination as a Christian and rendered the continuance of his employment there impossible. It is unnecessary for me to detail his concerns in this respect.
He claimed that he left Dubai after receiving his visa to come to Australia, and spent only one day in India before continuing on to Australia. He claimed that his fears of remaining in India had continued since the April 2001 incident as a result of a further incident in November 2003, when as a result of attacks by the CPI(M) members on members of BJP a BJP member was murdered and this gave rise to retaliatory threats by the BJP against DYFI members. He claimed:
As I was a member of DYFI earlier I am afraid of going back to earlier on the above noted grounds. Both political parties are always fighting there which results threats to personal safety.
The applicant attended a hearing before the Tribunal on 7 April 2004, which had been postponed at the request of the applicant to enable him to put forward various background newspaper and other reports. At the hearing he was questioned by the Tribunal about his claims, and it appears that the Tribunal put to the applicant various background information available to the Tribunal concerning the situation in India which he might face if he returned. The Tribunal also investigated his concerns about whether he could return to Dubai.
Under the heading “Findings and Reasons”, the Tribunal accepted the applicant's contention that his previous employer had taken steps to have his Dubai residency visa cancelled, and that he was unable to return to employment of any sort in Dubai without first returning to India. The Tribunal therefore assessed his claims to enjoy protection rights from Australia on the basis that it should first assess his chance of suffering persecution for a Convention ground in India. The Tribunal concluded in this respect:
I am not however satisfied that there is any substance to the applicant’s claim to face Convention-related persecution in India. Nothing in the material put before me by the applicant, or in the independent country information cited above, establishes that a person such as the applicant – who has made no claim to be prominent or active in his country’s politics – face politically-motivated persecution on any widespread or indiscriminate basis. Nothing in the material provided by the applicant establishes that there are particular circumstances applying to him that make him a target for such persecution.
The Tribunal's conclusion was based on an assessment of the applicant’s claims concerning the April 2001 incident. It noted that none of the newspaper articles which he provided mentioned the applicant and that none of the material “relates directly to him”. The Tribunal said:
I sought and obtained the applicant's confirmation during discussion at his hearing that this applied to the material he had provided without translations into English.
The Tribunal found the applicant's claim to fear persecution by reference to incidents involving the organisation to which he belonged has been “contrived and illogical”, and drew support from the fact that the applicant had not further referred to the 2001 incidents in discussions at the hearing when invited “to tell me about any matter which would support his claim to be at risk of harm if he returned to his country.” The Tribunal said that it was not satisfied that they occurred.
In relation to the November 2003 incident, the Tribunal said that there was “nothing in the material provided by the applicant, including our discussions of his claims at a lengthy hearing, to make any direct or meaningful link between him and that incident”. He was in Dubai at the time.
The Tribunal concluded:
Nothing in this material enables me to find that the applicant faces a real chance of serious harm at the hands of the BJP, as he claims in his protection visa application, if he returns to India. Asked at hearing about the basis for his concerns and for comment on independent country information cited above that human rights and religious freedom were provided for in India, he again described the 2001 and 2003 incidents discussed above, without providing any further detail or supporting information.
I took the applicant through the Departmental delegate’s reasons for refusing him a protection visa, including the assessment that the authorities could provide him with protection from the harm he feared and that he had shown the skills and had the education to relocate successfully in India if that were his wish.
The applicant responded that he acknowledged there were places in India where there were not the same problems as he had experienced in Kerala but further responded to the effect that he had experienced problems in Mysore and that those who wished to harm him could go wherever he resettled. I find these responses unconvincing in the light of the independent country information cited above and by the Departmental delegate.
Taking account of the applicant’s testimony and the independent country information cited above I find that there is not a real chance that the applicant would suffer harm serious enough to correspond to Convention persecution as discussed on page 3 above in his country in the reasonably-foreseeable future. I find that it would be possible and reasonable for him to re-locate to another part of India if he wished to do so. Accordingly I find that he does not have a well-founded fear of persecution arising from political opinion or any other Convention ground.
I have examined the Tribunal's reasoning leading to its conclusion and assessed it against the material which is before me as to the claims made by the applicant. I am unable to identify any error of law in the Tribunal's reasoning, and certainly no error amounting to a jurisdictional error. The applicant has not been able to identify any such error in his application to the Court or submissions to me.
In his original application his complaints concerned the merits of the Tribunal's decision, and included a concern that it had not considered "the statements and evidences produced". I can find no substance in a claim that the Tribunal did not consider the applicant’s evidence. In my view the applicant's concerns go only to the merits of the Tribunal's assessments of the material he presented.
In an amended application filed in this Court, he raised further contentions to justify holding a current fear of harm if he returned to India. However, these concerns are not matters which, as I have explained, can move the Court to give the orders he seeks.
One matter which was obliquely raised in the applicant's application caused me concern in relation to procedural fairness before the Tribunal. The applicant's application pleaded "RRT denied natural justice" without giving any particulars of his allegation. However, in his amended application, the applicant draws attention to the following paragraph in the Tribunal's reasons:
Notes on the Department file indicate that Mr D. of [the applicant’s former employer] in Dubai contacted the Department’s office in Dubai on 7 February 2004 seeking information on the applicant’s failure to return to his employment from Australia, to which the company claimed to have sent him for three weeks English language training. Mr D claimed that he had spoken to the applicant, who had said that he had found a better job in Australia and would not be returning to Dubai. Mr D stated that he was upset that the applicant would not be returning in view of the company’s considerable expenditure in sending the applicant to Australia for training.
In his amended application the applicant, while not submitting that an unfair procedure occurred, implied that he had not been told about the Department file note. He contended that if he had been told about the file note he would have pointed out that it assisted his contention that his employer in Dubai was seeking to end his employment and to mislead the Australian Immigration Office. He claimed that the statement attributed to his employer suggesting that he, the applicant, had obtained employment in Australia prior to 7 February 2004 could be shown to be false because he had only been given an Australian work permit on 7 March 2004.
I invited the applicant to give oral evidence under oath in relation to whether he had been given an opportunity before the Tribunal to make these points about the Department file note, and he took that opportunity. He said that he had not been told about the file note in the course of the Tribunal hearing nor at any other time, and indicated what he would have said if he had been told. That is, he would have pointed out the falsity of the statement attributed to his employer, and made the point that this confirmed his contention that his employer was seeking to terminate his ability to work in Dubai.
The applicant was not cross-examined, and there is no transcript of the Tribunal hearing in evidence before me to shed more light on what transpired at its hearing. Notwithstanding the informality with which the contention was developed, I am ready to accept for the purposes of this judgment that the applicant was not given any notice of the Department file note nor an opportunity to make submissions about it. I shall assume that, if there is a possibility that the file note was used by the Tribunal to materially affect its conclusions adverse to the applicant, then a breach of requirements of procedural fairness as encompassed by ss.424A or 425 of the Migration Act may have occurred upon which I might have set aside the decision. However, I am not so persuaded.
It is well established that relief for a denial of procedural fairness is given where an applicant can show that the failure to provide an opportunity to comment has denied the applicant "the possibility of a successful outcome" (see Pfizer Pty Ltd v Birkett (2001) 112 FCR 305 at [63], also the authorities cited by Spigelman CJ in Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at [48] c.f. Mason P at [285], and Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 62 at [85-86]. The extent to which this principle is excluded in a situation governed by ss.422B, 424A and 425 of the Migration Act is something which I do not need to consider.
In the present case, I am satisfied that the failure to allow the applicant to comment on the departmental file note did not prejudice him in the Tribunal's decision-making on his application. The Tribunal refers to the file note at the start of its reasoning as follows:
The applicant has provided considerable information to support his claim that he is no longer eligible for residence in Dubai on the basis of the residence permission granted to him in 2001 to undertake particular employment there. He has stated in his letter of 7 June 2004 to the Tribunal that his previous employer has taken steps to have his residence visa cancelled, and I consider that this is consistent with advice on the Department’s file recording that the applicant’s former employer was surprised that the applicant had not returned from Australia, where the employer claimed to have sent him for training, apparently with the expectation that the applicant would return to his employment in Dubai.
Accordingly I accept the applicant’s claims that he is unable to return to Dubai without first returning to India. For that reason the issue of whether or not he would experience Convention-related persecution if he were to return to Dubai is not central to my finding unless I were to find that the applicant faces a real chance of such harm in India, in which case the issue of his possible right to enter and reside legally in Dubai would be relevant to a possible finding that protection in a third country was available to him. (I note that the applicant would appear from the UAE government information he has provided to have the possibility of applying again in the future for a visa for work and residence in the UAE, should that be his wish.)
From this reasoning it is clear that the Tribunal has indeed acted upon the file note in the manner which the applicant would have submitted if he had been given that chance. That is, as confirming his claim that his employer had taken steps to have his residence visa cancelled, and that he could not return to Dubai without first resuming residence in India.
A careful reading of the Tribunal's reasoning in relation to his fears concerning residence in India, in my view, shows that the Tribunal has not given any adverse effect to the file note when assessing the applicant's Indian claims. In my view, he was not at all prejudiced by not having the opportunity to comment upon the Department file note, and I do not think any ground of jurisdictional error arises from this matter.
I am unable to find any jurisdictional error of any sort in the Tribunal’s reasons or proceedings.
For the above reasons I must dismiss the application.
RECORDED: NOT TRANSCRIBED
Applicant to pay the respondent's costs in the sum of $4000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 17 February 2005