SZEWW v Minister for Immigration
[2005] FMCA 1048
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWW v MINISTER FOR IMMIGRATION | [2005] FMCA 1048 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 424, 425, 425A, 426A, 474
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 (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
VCAS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 368
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | SZEWW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2137 of 2004 |
| Delivered on: | 29 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms Stella Koya |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2137 of 2004
| SZEWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 13 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 May 2004 and handed down on 16 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
12 December 2003 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
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 “SZEWW”.
The applicant, who claims to be a citizen of India, arrived in Australia on 12 October 2003. On 5 November 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-44) (“CB”). On 12 December 2003 the delegate refused to grant a protection visa (CB pp.47-56) and on 12 January 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.57-60).
The applicant claimed he was married with a daughter. He stated that he had travelled to Australia alone and that his wife and daughter remained in India, apparently living in Kerala where he had formerly resided. The applicant claimed to be a Christian who feared persecution in India for Convention-related reasons of “religion” (CB pp.76-77). Essentially, the applicant claimed that his activities as a Christian working in the community attracted antipathy, attack and threats from non-Christian members of the community where he lived. In his original visa application, the applicant claimed he was attacked by three Hindus on his way home from work in August 2002. He claimed the incident was a religious attack but he had decided to forgive his assailants according to his Christian principles, rather than seek justice and/or protection from the authorities (CB p.27). In its decision, under the heading “Claims and Evidence”, the Tribunal noted that the applicant had chosen this course and could not legitimately assert that he failed to receive state protection or injustice as he did not seek any and thus the claimed attack remains unrecorded in India (CB p.77).
The applicant claimed he became a pastor in his parish and fled India after hearing of a Hindu plot to kill him (CB pp.27-28). In his original visa application, he stated his occupation was that of accountant from 1995 to 2003 (CB p.18). The Tribunal noted that “there was no reason to assume that he was not an accountant full-time” and “this evidence does not sit with the applicant’s claims of having the vocation of a pastor” (CB p.77). The Tribunal also noted that the applicant’s daughter, who remains in Kerala, has a Christian name and it was reasonable to assume that the applicant’s wife is also a Christian. The Tribunal stated that it was odd that the applicant would flee India himself and leave his Christian family, both females, to fend for themselves (CB p.77).
The Tribunal’s findings and reasons
Ms S Koya, Solicitor appearing for the respondent, prepared written submissions prior to the hearing which contained the following summary of the Tribunal’s decision:
a)On 12 January 2004, the Tribunal wrote to the applicant, and sent the letter to his authorised recipient, and to his mailing address, detailing the procedure that the Tribunal would follow in dealing with the applicant’s application for review (CB pp.61-63).
b)On 2 March 2004, the Tribunal wrote a letter to the applicant, and sent it to his authorised recipient, and to his mailing address, stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal invited the applicant to a hearing on 6 May 2004 (CB pp.63-64).
c)On 3 May 2004, the Tribunal received a completed “Response to Hearing Invitation” form on which the applicant indicated that he would attend the hearing. The applicant, however, did not attend the hearing (CB p.67).
d)On 25 May 2004, the Tribunal affirmed the decision of the delegate to refuse to grant a protection visa and handed down its decision on the 16 June 2004.
e)The Tribunal noted that the applicant had accepted the invitation to attend a hearing on 6 May 2004, but failed to appear on the day. It further noted that the applicant was represented and neither he nor his representative provided any explanation for his absence. In those circumstances, it proceeded to review the decision on the material before it (CB p.74).
f)The Tribunal accepted that the applicant is a national of India and a Christian. It did not accept the applicant's claims that he suffered attacks and threats from non-Christian members of the community. The Tribunal concluded that the applicant was a full time accountant and that he had exaggerated his claims about devotion to pastoral work (CB p.78).
g)The Tribunal noted that country information about the situation of Christians in India was cited in the primary decision and that information showed that there had been sporadic outbreaks of violence against Christians in parts of India. That information also showed there are concentrations of Christian populations in places like Kerala. The Tribunal noted that the delegate had found that the applicant could relocate within India if he found life difficult in Kerala. The Tribunal noted that whilst the applicant had addressed the relocation finding in his application for review, he had not satisfactorily argued that it would be unreasonable for him and his family to relocate within India (CB p.77).
h)The Tribunal found that the applicant's failure to appear at the hearing and his failure to explain his absence showed a lack of interest in the substantive outcome of his case (CB p.78).
i)The Tribunal used country information indirectly in its decision by finding that the applicant did not satisfactorily argue against the delegate's finding regarding relocation based on country information. This information was not put to the applicant as he did not attend the hearing.
j)The Tribunal’s decision was influenced by the fact that the claims were unsupported and conflicting and raised questionable circumstances which were not explained. The failure to attend the hearing was also an adverse factor in the decision.
Application for review of the Tribunal’s decision
On 13 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Tribunal failed to asked questions or seek additional information from me which could have assisted a reasonable Tribunal to make a fairer decision. The Tribunal did not follow the proper procedure as required under s.424 of the Migration Act 1958.
2.The Tribunal failed to find if my reasons of fearing persecution because of my religion constitute persecution within the Convention. The Tribunal did not complete the exercise of its jurisdiction as it made no finding of my reasons for seeking protection in Australia.
3.The Tribunal failed to find if state or government protection would be available on my return to India.
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant 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.
Submissions
The applicant appeared self represented with the aid of a Malayalam interpreter. The applicant attended a directions hearing on 13 October 2004 and consented to Short Minutes of Order at that time requiring him to file and serve an amended application and any evidence upon which he proposed to rely at the hearing. However, the applicant did not comply with the order to file an amended application nor did he file and serve any written submissions prior to the hearing.
When the applicant was invited to make oral submissions at the hearing, this invitation was declined and the applicant indicated that he would rely upon his original grounds. At the directions hearing on
13 October 2004 the applicant was offered and accepted the opportunity to participate in the Pilot RRT Legal Advice Scheme (NSW). He was subsequently allocated a panel adviser and although the Panel coordinator wrote to the applicant advising contact details of a panel adviser, the applicant indicated to the Court at the hearing that he had not contacted the panel adviser to arrange a meeting and no legal advice had been received. The purpose and function of the proceedings were briefly explained to the applicant and despite the further invitation to make submissions in support of his application, the applicant declined.
Ms S Koya, Solicitor appearing for the respondent, filed written submissions prior to the hearing which were supplemented by oral presentation during the hearing.
Reasons
In each of the grounds pleaded by the applicant, he claimed that the Tribunal failed to inquire of the applicant and investigate his various reasons for fear of religious persecution in India. However, contrary to the applicant’s contention, the Tribunal was under no obligation to obtain further information from him. It was for the applicant to make out his own claim. The Tribunal wrote to the applicant on 2 March 2004 advising that it was unable to arrive at a decision favourable to him on the basis of the material in his file alone and invited him to attend a hearing before it on 6 May 2004. The applicant accepted the hearing invitation but failed to appear on the day.
The applicant was represented by Fred & Associates Immigration Services, but neither he nor his representative provided an explanation for his absence from the Tribunal hearing. Having regard to the fact that the Tribunal only had before it the facts as alleged by the applicant that were contained in the papers, it was the only material upon which the Tribunal could proceed. The relevant facts pertaining to the application were required to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out his own case: Minister for Immigration & Ethnic Affairs v Guo per Kirby J at 596. Procedural fairness does not require that the applicant be assisted by the Tribunal in making out his case: Muin v Refugee Review Tribunal per Hayne J at [265]-[266]. To the extent that all of the grounds contended that the Tribunal failed to obtain further information from the applicant, the argument is misconceived and cannot be sustained.
The first ground contended that the Tribunal did not follow the proper procedures as required under s.424 of the Act. The applicant did not provide any particularisation of this ground, either by written submission (which the applicant failed to provide despite the orders at directions to do so) or by oral submissions (which the applicant declined to make when invited). Section 424 of the Act provides that the Tribunal “may” seek additional information however that provision is not expressed in mandatory terms.
The Tribunal, in its decision making process, was not required to go beyond the applicant’s claim: VCAS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. In accordance with s.425 and s.425A of the Act, the Tribunal invited the applicant to appear before it to give evidence and present arguments in relation to the decision under review. This invitation permitted the bringing of any other person(s) to the Tribunal to give oral evidence in support of the applicant’s claim. Despite accepting the hearing invitation, the applicant did not attend the Tribunal hearing and no explanation was provided for his non appearance. The Tribunal hearing was scheduled for 6 May 2004 and its decision was not handed down until 16 June 2004. During this period the Tribunal did not receive any communication from the applicant or his adviser. The Tribunal then proceeded appropriately and consistently in accordance with s.426A of the Act to make a decision without taking further evidence from the applicant. This approach was endorsed by the Full Federal Court in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs per Ryan, Merkel and Conti JJ at [26]:
“In our view the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which it relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.”
In Ground 2, the issue of the Tribunal not obtaining further information is addressed above. The remaining issue was the applicant’s fear of persecution because of his religious conviction and whether that persecution was within the Convention. On the limited information available to the Tribunal, it was not satisfied that the applicant faced a real chance of persecution for a Convention based reason. In the absence of that satisfaction, the Tribunal was bound to affirm the decision of the delegate to refuse to grant a protection visa. The legislative regime requires that a positive state of satisfaction as to whether protection obligations are owed, mandates a refusal decision if that state of satisfaction is not reached: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs per Ryan, Jacobson and Lander JJ at [15]-[16].
The Full Court in NAST v Minister for Immigration & Multicultural & Indigenous Affairs (“NAST”) supported this conclusion and noted that the Tribunal in that case, while listing a number of significant matters about which it would have wished to satisfy itself at a hearing, noted further that the primary judge had held, correctly, that it was in no way irrational, arbitrary or capricious for the Tribunal to want an explanation about those matters: NAST per Beaumont, Merkel and Hely JJ at [4]:
“In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.”
In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 the Full Court stated that:
“… as section 65 and Wu Shan Liang Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction”.
The applicant has failed to satisfy the Tribunal that he faced a real chance of persecution so this ground cannot be sustained.
The third ground contended that the Tribunal failed to find if state or government protection would be available to the applicant on his return to India. This claim was made in light of the applicant’s admission that he had not reported any of the incidents, which were the basis of his Convention claim, to the police. When interviewed by the delegate in respect of his initial visa application, the applicant had stated that he did not even try to make any official complaint regarding the August 2002 attack. The Tribunal did, however, consider the country information in respect of Christian communities in various parts of India and noted an International Religious Freedom Report – India (USA Department of State 7 October 2002) that indicated there were concentrations of Christian populations in places such as Kerala, Tamil Nadu and Goa as well as some of the smaller north eastern states. The delegate found that the applicant could relocate within India if he was finding life in Kerala too difficult.
The Tribunal found that the applicant’s action of leaving his family in India to fend for themselves, undermined his claim that Kerala was an unsafe place for his family. The delegate found that should the applicant face any difficulties upon his return to India, he would have access to seek protection and justice at a higher level through the legal system. The Department of Foreign Affairs and Trade (DFAT) had reported that recourse is available under Indian law both at a state and federal level and there are state and federal human rights commissions that receive complaints. The delegate found that there was no evidence to support the suggestion that protection from the authorities would be unavailable to the applicant and that the state was unwilling or unable to protect the applicant from private harm. Alternatively, there were states other than Kerala that had minority Christian populations to which the applicant could move with safety. The Tribunal noted in its “Findings and Reasons” that the applicant had not satisfactorily argued that it was unreasonable for him and his family to relocate within India. Consequently, this ground must fail.
Conclusion
The applicant in these proceedings was self represented and had made no oral or written submissions. The grounds in the applicant’s original application were unparticularised. However, where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Chung v University of Sydney & Ors. The manner in which the grounds have been drafted produce some duplication and overlapping of issues. As the grounds in the application are general and without particularisation, by my own examination of the decision on its face, I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant’s claim 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-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 July 2005
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