SZEKC v Minister for Immigration - [2005] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKC v MINISTER FOR IMMIGRATION

[2005] FMCA 758

MIGRATION – RRT decision – Indian claiming persecution for Christian conversions – disbelieved by Tribunal – procedural fairness concerning the applicant obtaining documents from India – no error found.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.422B, 483A, Pt 7 Div 4, Pt 8

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71

Applicant:

SZEKC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2829 of 2004

Judgment of:

Smith FM

Hearing date:

25 May 2005

Delivered at:

Sydney

Delivered on:

25 May 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2829 of 2004

SZEKC

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) (“the Migration Act”), which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 July 2004 and handed down on 17 August 2004. The Tribunal affirmed a decision of the delegate which refused to grant 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”. In a matter such as the present, the relevant jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) but 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 send the case back unless I am satisfied that the Tribunal decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa or whether his claims should be believed.
In the present case, the applicant arrived in Australia on a visitor’s visa in April 2004 and applied for a protection visa on 27 April 2004 assisted by an agent, Mr Mollah. In his application he described his religion as “spiritual” and attached a statement headed “Details About the Happenings”, describing events which he said had happened to him in his country of nationality, India, in a period leading up to his leaving that country in 2002 when he went to Kenya.
The Tribunal provided in its reasons what is, for present purposes, a sufficient summary of his claims:
The applicant claims that:
·He was born into a Hindu family.
·His parents do not have much education.
·His mother was born into a Christian family, but lived her life as a Hindu after she married his father.
·He has been interested in Christianity since he was a child. He was influenced by his maternal relatives and used to read Christian books.
·His father opposed his interest in Christianity and used to beat him and tear up his books.
·As an adult he met Christians who were engaged in social welfare activities. He joined in with them.
·When they moved on he started his own activities. He used to hold meetings in places such as parks and would talk to people about Christianity.
·His father was very angry with him and expelled him from the family home when he found out about his activities in this regard. Some Hindu families had complained to his father that he was trying to convert their relatives to Christianity.
·Hindu people were also very angry with him and decided to teach him a lesson. They used to harass, abuse and threaten him. On 20 August 2000 a group of ten to twelve people physically assaulted and injured him.
·He reported them to the police, but no action was taken and the people continued to threaten him.
·He lost the support of his family and lost his job.
·Some of his friends and well‑wishers advised him to leave India to save his life. After six or seven months he was able to start working, but after some time he found out that his enemies knew that he was in Kenya. They could have hired thugs to kill him at any time.
In his visa application in answer to the question: “Please list all the documents you are not providing with this application but will be providing later”, the applicant has written: “Documentary evidence to support my refugee application”.
In answer to the question: “If you have not attached and cannot provide any relevant documents, please list those documents and explain why they cannot be provided”, the applicant has written: “I will inform later”.
The applicant had not forwarded any further documents by the time of the delegate’s decision which was taken on 3 May 2004. In his decision, which was provided to the applicant and his agent, the delegate drew attention to the fact that: “The applicant has provided no evidence of any kind to substantiate any of his claims”.
The applicant lodged an application for review by the Refugee Review Tribunal on 28 May 2004 assisted by Mr Mollah, who was appointed as his agent to act on his behalf in relation to his case. The application did not attach any further details of his claims nor supporting documents, but contained the following criticism:
The delegate did not investigate my claim and did not invite me to provide more evidence to support my claims.
I will provide documentary evidence and more statement to support my review application later.
However, no such further material had been provided to the Tribunal by the time the applicant attended a hearing to which he was invited on 13 July 2004. The applicant attended with Mr Mollah in attendance. The only evidence before the Court as to what happened in the course of the hearing is contained in a description given by the Tribunal in its statement of reasons.
The Tribunal recounted its questioning of the applicant about his statement, including his employment history and his claimed activities in relation to spreading Christianity. It also asked him about his religious activities after coming to Australia, to which the applicant stated that “he still hasn’t made up his mind about which church to attend and has not attended church in Australia so far”. He also told the Tribunal that he “had not had the opportunity to be baptised”. The Tribunal exposed its concerns about this evidence to the applicant.
The Tribunal also recorded the following as having occurred at the hearing:
The applicant claimed that he had asked a friend in India to get him some evidence to support his claims. The applicant indicated that he had asked for this evidence after the delegate rejected his application, some two months ago. I asked the applicant what evidence he had asked for. He indicated that it was evidence that he had made a complaint to the police. I put to the applicant that two months seemed to be sufficient time in which to obtain further evidence. The applicant claimed that it was difficult to get evidence from India. I indicated to the applicant that he could have a further seven days in which to provide any further evidence, as I considered that two months was ample time in which to obtain documents. I also put to the applicant that there is independent evidence before me indicating that it is very easy to obtain false documentation in India (See Danish Immigration Service & Danish Refugee Council 2000, ‘False passports and other documents’ in Report on fact‑finding mission to Punjab (India): The position of Sikhs 21 March to April 2000, March/April, p.42). The applicant did not respond directly to this, instead reiterating that he was trying to get further evidence.
The applicant’s adviser stated that he would provide submissions with the documents obtained by the applicant. No further evidence was provided by the applicant. Nor were any submissions provided by the applicant’s adviser. Neither the applicant nor his adviser contacted the Tribunal to request further time to obtain the documents or provide submissions.
The Tribunal gave short reasons for affirming the delegate’s decision, essentially declining to accept the truth of the applicant’s claims. Its relevant reasoning was:
I accept that the applicant is a national of India. However, I am of the view that the applicant was a most unconvincing witness. I do not accept that the applicant was spreading Christianity prior to leaving India, or that he would seek to spread Christianity if he returned to India. In relation to this, I consider it significant that although the applicant claims to be a Christian dedicated to his faith to such an extent that he was trying to spread it, in the three months he has been in Australia he has not sought to attend Church. The applicant claimed that he had still not made up his mind about which church to attend. In my view, this does not explain the applicant failing to attend church at all. In my view, if the applicant sincerely considered himself to be a Christian and had been forced to leave India because he had been persecuted for this reason, he would have sought fellowship with a Christian community at the earliest opportunity.
Moreover, I am of the view that if the applicant was a Christian, he would at some stage have taken steps to be baptised. In relation to this, the applicant demonstrated some knowledge of Christianity during the hearing. However, he lacked an awareness of the significance of baptism. In my view, if the applicant was a Christian and had tried to convert others to Christianity, he would have demonstrated a more sophisticated awareness of such a fundamental aspect of the Christian faith.
In the circumstances, I do not accept that the applicant has a commitment to Christianity. I do not accept that he practised Christianity or that he tried to spread Christianity in India. It follows that I do not accept that the applicant was threatened or attacked for this reason. As the applicant has made no attempt to attend a Christian church in the three months he has been in Australia, I do not accept that the applicant has acquired a commitment to Christianity since leaving India. In the circumstances, I do not accept that the applicant would seek to practise Christianity if he returned to India, let alone that he would seek to spread Christianity. In the circumstances, I am unable to be satisfied that the applicant has a well‑founded fear of persecution [for] reasons of religion. The applicant has not claimed to fear persecution for any other Convention reason, and no other reason is suggested on the evidence before me. It follows that I am not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.
I have considered the procedures described by the Tribunal in its statement of reasons and the reasoning that it followed, and I am unable to identify any jurisdictional error affecting its decision.
In this Court the applicant has appeared without legal assistance, but in February of this year received advice under the Court’s funded advice scheme. That advice, according to the Court file, was given after a conference on 3 February 2005 and was sent on 14 February 2005. The advice may have included preparation of a further amended application which was sent to the Court by facsimile on 13 May 2005. The lateness of this filing has not been explained by the applicant.
Two other applications have been filed, and I shall deal with these first. The applicant’s original application uses a precedent familiar to the Court, which has a list of general assertions of bad faith, deprivation of natural justice, failure to consider evidence and failure to make inquiries, without providing any particulars which allow the general allegations to be meaningfully applied to the present proceedings.

I have thought about the matters raised in it, but I am unable to identify jurisdictional error arising under any of its paragraphs.
The applicant attended a first Court date on 28 September 2004 before me, and was directed to file and serve an amended application giving complete particulars by 30 November 2004 and written submissions 14 days before a hearing appointed for today. On 6 December 2004, he filed an amended application which has five paragraphs:
1.The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on my religious believe Christian minority in India. I was persecuted because of my religious believe in India. Because of my religion I was persecuted by the authority & religious group. If I persecuted by Indian authority & religious group it is not possible for me relocate any other place in India. I tried to relocate in India, but I failed because authority & religious group searching me. I will be persecute if I return back to India because of my religious believe. It is a convention base persecution.
2.I was harassed by religious group because of my religious believe. It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me to collect the document.
3.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
4.The Tribunal did not observe Migration Act properly to making the decision.
5. The Tribunal fail consider my documentary & oral my claims.
In relation to these claims, I do not accept that the Tribunal did not “properly consider” the applicant’s claims in the sense of identifying and making findings upon them according to law. It is not the function of the Court itself to assess whether those claims should have been accepted by the Tribunal. I reject the general criticisms that there was no “rational or logical foundation” for the Tribunal’s conclusion, that it did not observe the Migration Act, and that it failed to consider the applicant’s claims. The applicant has made no attempt to elaborate these contentions either in written or oral submissions to me today.
The further amended application, which I have referred to above, contains a preamble leading to one complaint:
(iv)the Tribunal failed to accord procedural fairness to the applicant. In response to the applicant’s request for additional time to obtain further documentary evidence, the Tribunal informed the applicant that:
“ … even if you produce documents, given the information that I have that it is very easy and not expensive to obtain false documents from India, then those documents may not, in fact, support your case”.
The Tribunal refused to give the applicant more than

7 days to provide such evidence. The Tribunal thus failed to give the applicant a reasonable opportunity to obtain evidence to support his case. The Tribunal misled the applicant. As a result of the Tribunal’s statement the applicant concluded that documentary evidence would not or could not support his case and that it would be pointless to submit further evidence. The Tribunal also failed to approach the decision making process with an open mind as the Tribunal indicated that it would view documents supplied with suspicion.
At the commencement of today’s proceedings, I drew the applicant’s attention to the fact that the only evidence before me in relation to what happened at the hearing was the Tribunal’s own account which, relevantly, I have set out above. I invited the applicant to put into evidence the relevant passages in the tapes of the hearing or the transcript of the tapes. He indicated that neither of these was available today, nor did he take up my invitation to give evidence from the witness box either himself or by his agent Mr Mollah. No affidavits concerning the new ground have been filed. The applicant was unable to make submissions in support of the ground pleaded in the document, and said nothing in reply after I invited counsel for the Minister to explain the Minister’s contentions concerning that ground.
The further amended application in effect makes three complaints, which I shall deal with one at a time.
The first is that the Tribunal’s allowance of only seven days to provide any further evidence was unreasonable and a breach of procedural fairness. I shall not pause to consider how the ordinary principles of procedural fairness are affected by the provisions of Division 4 of Part 7 of the Migration Act in a matter such as the present which is affected by s.422B, but shall assume that the usual implications of procedural fairness are all to be made under the Migration Act in its application to the present proceedings.
However, on the material before me, I cannot accept that the Tribunal denied procedural fairness by refusing the applicant a reasonable opportunity to put forward documentary evidence in support of his case. As I have recounted above, the applicant has shown, from the time when he lodged his protection visa application on 27 April 2004, that he was aware on the advice of his agent of the benefits of having supporting documentary evidence. By the time of the Tribunal’s hearing, three months had elapsed, and there had been more than a month since the appeal to the Tribunal had been brought. As the applicant’s agent should have been aware, the Tribunal was under no obligation itself to make out an applicant’s case and was under no general duty to make its own inquiries or investigations (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and cases there cited).
In those circumstances, I consider that any further time allowed by the Tribunal after its hearing would have been an indulgence on the Tribunal’s part, and in my opinion its allowance of an additional seven days reflected an appropriate view of its procedural responsibilities. In this respect, it was significant that the request for the adjournment did not indicate to the Tribunal any specifically anticipated evidence, nor indicate where or how or when it would be obtained.
Moreover, the applicant and his adviser were present at the hearing and, according to the evidence before me, did not object to the time provided nor seek further time. I am not persuaded that if the adviser had been able, at the hearing or in the week after the hearing, to present the Tribunal with a more specific request for more time it would not have been granted by the Tribunal. Considering all the circumstances, I reject the contention that the time allowed was unreasonably short.
The second contention in the further amended application was that the Tribunal misled the applicant into not obtaining and submitting additional evidence. The difficulty facing this contention is the complete absence of any evidence from the applicant or his agent that statements by the Tribunal had any misleading effect whatsoever. For that reason I reject this contention. There is no evidence allowing this case to be compared with the circumstances of cases such as Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62.

The third contention was that the Tribunal displayed bias in its alleged statement at the hearing which is set out above. I consider that, in the absence of evidence as to the relevant parts of the hearing, this contention must also fail. In the absence of evidence that the statement was made as alleged, and providing its context, the Court is unable to satisfy itself as to any evidentiary foundation for this contention.
Moreover, looked at in isolation and assuming that the words were said, I do not consider that either actual bias or ostensible bias has been made out.
In relation to actual bias, I accept the submissions made by counsel for the Minister in her written submission as follows:
11.The respondent contends that the allegation of bias (that is, that the Tribunal “failed to approach the decision making process with an open mind”) must be rejected. There is a heavy onus on an applicant who claims lack of good faith. The allegation must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at [69].
12.It is necessary to show that the decision‑maker pre‑judged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision‑maker has a mind made up against the applicant and one which was not open to persuasion in favour of the applicant: per North J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, as cited in C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663 at [42] per Mansfield J. It is not sufficient that the decision‑maker has formed a preliminary conclusion about an issue. “There will be actual bias only when preliminary views are incapable of alteration”: per Wilcox J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, as cited in C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663 at [42]. Furthermore, “whether actual bias has been shown must be determined in the context of the hearing as a whole, including all the material before the decision maker”: C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663 at [43].
13.In this case, the “heavy onus” has not been discharged. When the Tribunal informed the applicant that it was easy and not expensive to obtain false Indian documents, the Tribunal did not say that any such documents would not support his case. It stated that they may not support his case. In so informing the applicant, the Tribunal was acting fairly in notifying the applicant about a potential problem with such documents, thus giving the applicant an opportunity to counteract the problem. Furthermore, the Tribunal did not state that it would not receive such documents, nor that it would discount them if they were received.
In relation to ostensible bias, the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-32] has indicated the appropriate test. Their Honours suggest that the test of “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”, should be formulated “by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to any apprehension of bias”. Applying that test, both with and without the added formulation, I do not consider that it is satisfied in the present case for the following reasons.
In the statement extracted in the application, the Tribunal does not state or indicate that it has closed its mind to an assessment of whatever documentary evidence the applicant chose to present. I accept that it referred to a concern that false documentary evidence was easily obtained from India, but in my view a lay observer would understand that an applicant such as the present, assisted by a migration agent such as Mr Mollah, would not be surprised nor unfairly intimidated by the statement attributed to the Tribunal. There is certainly no evidence that any such effects resulted from the Tribunal’s alleged statement in the mind of either the applicant or his adviser.
For the above reasons, I reject the three contentions that there was a failure to accord procedural fairness in the course of the Tribunal’s proceedings in this matter. Since I have been unable to find any other jurisdictional error affecting the Tribunal’s decision, I must 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 thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 June 2005