SZEYH v Minister for Immigration

[2005] FMCA 1326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1326

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in India as a member of Bharatiya Janata Party – applicant declined invitation to attend hearing – decision of Tribunal to proceed with review decision without further notice to applicant – applicant claimed denial of procedural fairness – applicant claimed Tribunal should have required attendance of applicant pursuant to Tribunal’s power under s.427 of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 425; 425(2)(b); 425A; 425A; 425A(3); 426A; 427; 427(3); 441; 474

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
B41of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32

First Applicant: SZEYH

Second Applicant: SZEYI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2251 of 2004

Judgment of: Emmett FM

Hearing date: 12 September 2005

Date of Last Submission: 12 September 2005

Delivered at: Sydney

Delivered on: 12 September 2005

REPRESENTATION

Solicitors for the Applicant: Mr T. Silva, Silva Solicitors

Solicitors for the First Respondent: Ms J. Bautista, Sparke Helmore

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the applications filed in this Court in respect of each applicant are dismissed.

4. That the Applicant pay the costs of the Respondent in the amount of $3750.00.

5. That the Applicant pay the costs in accordance with Order 4 above within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2251 of 2004

SZEYH

First Applicant

SZEYI

First Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.

2. The applicants are husband and wife. For the purposes of this judgment I will refer to the applicant husband as the Applicant as his wife’s application is dependent on the outcome of the Applicant.

3. The Applicant was born in Borasad (Gujarat), India on 18 October 1961.

4. The Applicant claims to be a citizen of India.

5. On 29 July 2003, the Applicant claims that he legally departed from Mumbai.

6. The Applicant arrived in Australia on 31 July 2003.

7. The Applicant has a son who was born in India on 7 September 1972 and remains in India.

8. On 10 September 2003 the Applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”).

9. The Applicant claimed that if he and his wife returned to India, they would be killed by Muslim, political and Mafia groups because of the Applicant’s Hindu religion and membership of the Bharatiya Janata Party (BJP).

10. On 1 October 2003, the delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

11. On 20 October 2003, the Applicant filed an application for review before the Tribunal. On 29 June 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.

12. On 19 July 2004, the Applicant filed an application in this court seeking judicial review of the Tribunal’s decision.

13. Pursuant to Short Minutes of Order made on 20 October 2004, the applicant filed an amended application on 7 January 2005.

14. On 12 September 2005, the Applicant filed a further amended application in this Court.

15. The Applicant was represented at the hearing today. The Applicant relied on 2 grounds in support of his Application.

16. The first ground claims that the Tribunal erred in failing to give a “real and meaningful” invitation to attend a hearing to the Applicant.

17. The Applicant referred the Court to Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 in supporting his submission that s.425 of the Act had been breached because the Applicant did not attend the hearing because of his wife’s ill health and his migration agent’s advice. The Applicant further submitted that s.425(2)(b) of the Act required the Applicant’s consent to the Tribunal deciding the review without the Applicant appearing before it.

18. On 10 November 2003, the Tribunal wrote to the Applicant informing him that it had considered the material before it in relation to his application, however, was unable to make a decision in his favour on that information alone. The letter went on to invite the Applicant to attend a hearing on 19 January 2004 before the Tribunal to give oral evidence and present arguments in support of his claims.

19. On 16 January 2004, the Tribunal received a response from the Applicant to its invitation to attend a hearing indicating that the Applicant did not want to come to a hearing and consenting to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

20. On 3 June 2004, the Tribunal proceeded with its review of the Applicant’s claims, noting the response received by it, in writing, that the Applicant did not wish to give oral evidence and had consented to the Tribunal proceeding on the review.

21. The Tribunal had regard to the claims made by the Applicant before the delegate. The Applicant, in his review application before the Tribunal, requested the Tribunal to have regard to the delegate’s file. The Applicant further stated, in his review application, that “a detailed submission would be filed later.” No further material or submissions were received from the Applicant.

22. The Tribunal noted that the Applicant made a number of “very serious assertions about his experiences in India”, including a violent assault in 1992 and many years of serious threats. The Tribunal noted the Applicant’s claim that he was persecuted because of his “longstanding activists role” within the BJP. The Tribunal noted that the Applicant had not submitted any documentary evidence in support of his claim to be a longstanding member of the BJP, nor any evidence that he had ever been treated for serious injuries.

23. Further, the Tribunal noted that the Applicant lived at the same address and worked at the same place for many years, a factor which the Tribunal observed did not appear to be consistent with a fear of imminent harm. Accordingly, the Tribunal was not satisfied that the Applicant was a member of the BJP, or the target of any threats or attacks. The Tribunal concluded that it was not satisfied that the Applicant had a well founded fear of persecution within the meaning of the Convention and was therefore not satisfied that the Applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

24. Section 425 of the Act, requires the Tribunal to invite an applicant to appear before it and to give and present arguments relating to the issues arising in relation to the decision under review. Relevantly, where an applicant has consented to the Tribunal deciding the review without the applicant appearing before it, then the Tribunal is not obliged to invite the applicant to appear before it. (s.425(2)(b)).

25. Section 425A, requires that the Tribunal must give the applicant notice of the date, time and place of the hearing. The Tribunal must provide such notice to the applicant, in accordance with s.441A of the Act. It is common ground that the Applicant received the invitation to appear in accordance with s.441A, the invitation having being sent to the Applicant at his nominated postal address, residential address and to his migration agent. The period of notice must be at least a reasonable period. (s.425A(3)). The Tribunal, having sent its invitation to the Applicant on 10 November 2003 inviting him to appear on 19 January 2004 provided a reasonable period of notice.

26. Having complied with s.425 of the Act, the Tribunal was entitled to proceed on the review without taking any further action to allow or enable the Applicant to appear before it in accordance with s.426A of the Act.

27. The Applicant read his affidavit sworn 3 August 2005, in support of his application. The First Respondent did not object to the affidavit being read, nor any part of it, nor did she wish to cross-examine the Applicant. The Applicant deposed that he telephoned his migration agent, Ajay Kumar, and told him he needed to have the date for hearing changed as his wife was ill. The Applicant deposed that his agent told him the Tribunal would not change the hearing date and his written story would be sufficient for the Tribunal. The Applicant deposed that he trusted the advice of his migration agent. However, the Applicant took no further steps to request the Tribunal to reschedule a hearing or to communicate to the Tribunal, in any way, the reason he was unable to appear.

28. The authorities are clear that an applicant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness.(B41of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [25]).

29. Further, the Applicant is taken to have assumed the risk that unsatisfactory features of his material, including omissions, would be noted by the Tribunal without an opportunity to the Applicant to explain or clarify them (s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]). This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:

    “There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.

30. Accordingly, there is no denial of procedural fairness to the Applicant in the Tribunal’s decision to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

31. The second ground of review relied upon by the Applicant is that the Tribunal erred in failing to require the Applicant to appear before it to give evidence pursuant to the Tribunal’s power in s.427(3) of the Act.

32. The Applicant submitted that he had made serious allegations of harm, in respect of which, the Tribunal should have made further enquiry before making its decision.

33. The Applicant had written to the Tribunal specifically informing it, in response to its s.425 notice, that he did not want to come to a hearing and that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

34. Pursuant to s.36 of the Act, it is for the Applicant to satisfy the First Respondent that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal had notified the Applicant in its s.425 notice that his material was not sufficient to enable the Tribunal to make a decision in his favour.

35. I do not accept the Applicant’s submission that if the Tribunal does not use its power under s.427 to require the Applicant “to attend to inquire into serious allegations of harm it is nor properly enquiring into the matter”.

36. Whilst the Tribunal has the power to summon a person before it to give evidence, there is no obligation or duty on the Tribunal to do so and the failure to do so does not amount to jurisdictional error (Minister for Immigration & Multicultural Affairs v SGLB (2004) ALJR 992 ; [2004] HCA 32 at [43]).

37. Accordingly, the decision of the Tribunal was not effected by jurisdictional error. The decision is a privative clause decision and pursuant TO s.474 of the Act this Court has no jurisdiction to interfere.

38. The Applications filed in this Court both in respect of each of the Applicant and his wife are dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Riddle

Date:  12 September 2005