SZFEN v Minister for Immigration

[2005] FMCA 1242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEN v MINISTER FOR IMMIGRATION [2005] FMCA 1242

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in not allowing applicant time sought to provide supporting documentation. 

Migration Act 1958, ss.422B, 424A, 425

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264
QAAC of 2004v Refugee Review Tribunal [2005] FCAFC 92
SMBQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1033
NAHI v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 277
W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528

Applicant: SZFEN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3566 of 2004

Judgment of: Barnes FM

Hearing date: 22 August 2005

Delivered at: Sydney

Delivered on: 22 August 2005

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr J Potts

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Refugee Tribunal be joined as second respondent to these proceedings. 

2. That the application is dismissed. 

3. That the applicant pay the respondent's costs fixed in the amount of $5,500.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3566 of 2004

SZFEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 October 2004 and handed down on 12 November 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of India who arrived in Australia on 14 October 2003.  On 13 January 2004 he applied for a protection visa.  In his protection visa application he indicated that his reasons for seeking protection were a combination of having lived in Saudi Arabia and been able to compare living there with living in India.  He had worked in Saudi Arabia, essentially from September 1993 until October 2003, but had returned to India from February 2003 until June 2003.  During that time he had taken a more active interest in politics and had joined the local group of Shiromani Akali Dali (SAD) as joint secretary of the Thana group.  He claimed that the leader of his party (Mr Badal) had been gaoled for corruption as had other members of the party and that his wife had told him that police had come to his home looking for him. 

2. The Department wrote to the applicant on 19 January 2004 acknowledging receipt of the application and advising that if he had any more information relevant to this application, he could give it to the Department any time before the decision was made but that the decision would not necessarily be delayed.   

3. After the delegate of the respondent refused the application, the applicant sought review by the Tribunal by application received on 19 March 2004.  The Tribunal wrote to the applicant at the address provided for service (and sent a copy to his migration agent) on

   
   

   19 March 2004 acknowledging receipt of his application and advising him, among other things, to immediately send any documents, information or other evidence he wanted the Tribunal to consider.  The Tribunal wrote to the applicant and to his migration agent again on

   
   

   7 April 2004 stating that it had considered the material before it in relation to the application but was unable to make a decision in his favour on this information alone.  It invited him to a hearing on 5 May 2004 and asked him to send any new documents or written arguments he wanted the Tribunal to consider by 23 April 2004.  A ‘Response to Hearing’ invitation form was received on 4 May 2004 which indicated that the applicant wished to attend the hearing.  He attended the hearing on 5 May 2004. 

4. In an affidavit filed in these proceedings on 4 May 2005 the applicant made certain claims about what occurred in the hearing.  On 10 August 2005 he filed what purported to be a translation of ‘Punjabi versions’ of the Tribunal hearing.  The respondent filed a transcript of the hearing in Court annexed to an affidavit sworn by Andrew John Crockett.  It is considerably more detailed than the document filed by the applicant and is consistent with the Tribunal account of what occurred in the hearing.  The applicant did not dispute and I accept that the transcript filed by the respondent is an accurate record of the hearing. 

5. In the hearing the applicant told the Tribunal that when he returned to India in February 2003 for a holiday he had joined the SAD Party.  When the new government came to power electricity bills had gone up.  He decided to become joint secretary of the local branch of the party and lobby the local government to have the cost of electricity reduced.  The applicant did not claim to have been involved in any other political activities during his association with SAD.  He told the Tribunal that his sole activity had been lobbying to get a reduction in the cost of electricity.  However he claimed that he was forced to leave India earlier than he had planned as the police came looking for him because of his involvement with SAD and that some of the local people had been apprehended by the police for their involvement in SAD and had remained in detention. 

6. He also told the Tribunal that he had not been involved in any political activity during his time in Saudi Arabia, where he had worked from September 1993 until October 2003 with the exception of trips home and that he had not been involved in any political activity in Australia.  He also claimed that if he returned to India the police would be waiting for him and accuse him of belonging to the Badal Group and that he would be gaoled. 

7. The applicant claimed there was a warrant for his arrest on account of his involvement as the joint secretary of the SAD Party in his village and that he would be persecuted as part of the corruption charges being pursued against the SAD President Badal.  The Tribunal records that it put country information, in particular about the charges against Badal and others, to the applicant for comment. 

8. It is apparent from the transcript that towards the conclusion of the hearing the Tribunal asked the applicant if there was anything he would like to tell the Tribunal that had not yet been discussed.  The applicant asked for some time, perhaps a week or so, to provide papers and certificates from the government to prove he belonged to the party and from the police to indicate that they were looking for him.  He claimed such certificates were “on the way”. 

9. When asked why he did not have such documents he responded that:

   
   “I have asked them to send it.  Maybe they’re delayed in the mail and that’s why I’m asking for a week or so time.  If it doesn't come in the mail, I'll ask them to fax it”

   . 

10. The applicant told the Tribunal that he had asked for the documents some 10 days earlier.  The Tribunal put to the applicant that in the letter of 19 March 2004 it had asked him to forward any documentation immediately.  The applicant said in response that he could not understand, that his English was not good but that he had had someone read the document to him.  He claimed that he did not have anyone read him the letter of 7 April 2004 (which invited him to the hearing) and repeated the request for supporting documentation.  The Tribunal pointed out that the letter was also sent to his adviser.  The applicant claimed that he was not told by anyone that he needed to get the documents.  The Tribunal told him that it was of the view that he had adequate opportunity to submit any relevant documentation.  He reiterated that no-one had told him that he needed to provide documents before the date specified in the letters.  The Tribunal stated that it would allow him until the close of business the next day to receive any copies of faxed documents he could obtain. 

11. The applicant again asked for a week because his brother drove a truck and was away.  The Tribunal stated that it had already advised of the extra time and went on to discuss country information.  At the end of the hearing the applicant reiterated that he should be given some extra time to provide certificates.  The Tribunal responded that if it required further information it would contact him and he would be notified when the decision had been finalised. 

12. In its reasons for decision the Tribunal accepted the applicant’s employment history and that he was involved in the local branch of SAD in India during his time there from February to June 2003.  It also accepted that during this period he assisted the local branch to lobby for a reduction in the cost of electricity.  However, it did not accept his claims that he was wanted by the police on account of his involvement with SAD.  It found that the applicant was not a credible witness. 

13. It considered the applicant's evidence about the nature and level of his involvement in political activity and did not accept he would be at risk of harm from the authorities on account of his imputed political opinion given that his sole activity was to lobby for a reduction in the cost of electricity.  It found that such activity would not attract the level of interest and penalty he described, that he did it over a limited period and that he was not involved in any other political activity in India or otherwise. 

14. The Tribunal did not consider it plausible that the applicant held a position of joint secretary if he was absent from the country over such a long period and only returned home for a short period every 3 years.  Nor did it consider plausible that some other local people were apprehended by the police for their involvement and that they remained in detention.  It found that if the applicant had to leave India 2 weeks earlier than planned, it was not because the police were looking for him on account of his imputed political opinion profile.  It found that he had fabricated his claims about the position he held and the level of interest that his activity attracted.  Accordingly the Tribunal did not accept that there was a warrant for his arrest for his alleged role as a joint secretary or that the police had been searching for him at his home.  

15. The Tribunal considered the applicant’s claim to fear being accused of belonging to the Badal Group and gaoled.  It did not accept that the applicant was at risk of persecution on account of charges filed against Badal or that he would be accused of membership of the Badal Group.  It had regard to his limited involvement in SAD and the fact that he was not involved in the Badal Group or otherwise involved in any political activity.  It also had regard to country information about the criminal charges that had been filed against Badal and other SAD members.  It found that such investigations were criminal investigations and were not for any Convention-related reason. 

16. The Tribunal also had regard to improvements in the human rights situation in the Punjab and in India.  It was satisfied that there was not a real chance that the applicant would be persecuted by any group for reason of his involvement with SAD.  It concluded that this evidence was submitted to bolster his claims.  As it found that he had not been persecuted in the past and that the continuing police interest in SAD related to criminal investigations, it found that there was not a real chance that if the applicant were to return to India now or in the reasonably foreseeable future he would be persecuted by opposition groups for reason of political opinion as claimed or for any other Convention reason.  It found that his fears were not well-founded. 

17. The applicant sought review of the Tribunal decision in this Court.  He relies on an amended application filed on 4 May 2005 which raises a number of grounds of review.  In oral submissions the applicant raised an issue which he described as the main point.  I will consider this first.  His complaint is that he was not given additional time to file any documents by the Tribunal.  He drew the Court's attention to part of the transcript filed by the solicitor for the respondent in support of his claim.  This issue is also raised by ground 2 in the amended application which contends that the applicant was not accorded procedural fairness and by the particular which states that he was not afforded an opportunity to file further evidence in support of his claim. 

18. On the basis of the transcript of the Tribunal hearing filed by the respondent, I accept that the applicant did seek an extra week to provide two certificates.  He was given until close of business the next day (contrary to what he swore in his affidavit on 4 May 2005 in which he suggested that he was, in fact, allowed a week but wanted more time). 

19. Critically, it is also apparent from the transcript and all the material before the Court that the Tribunal considered the applicant’s application for further time to provide documents but decided not to allow the time sought.  Counsel for the respondent has pointed out that although the applicant was given only one day from the hearing on 5 May 2004, the Tribunal decision was not made until 26 October 2004 and handed down on 12 November 2004.  There is nothing to indicate that the applicant (who had the assistance of a migration agent) sought to provide documents to the Tribunal during that time.  One of the documents that he now says he would have provided to the Tribunal (which he describes as a copy of a police report) is a translation dated 24 March 2005 which was some considerable time after the Tribunal made its decision. 

20. In the circumstances of this case I am not persuaded that the applicant was denied procedural fairness in the manner contended.  The Tribunal considered his request for further time in light of the past invitations and time that had elapsed.  The applicant was not, as he claims, denied any opportunity to file further evidence in support of his claim, although he was allowed only a short period of time after the hearing.  However he was first notified by the Department as early as 19 January 2004 and then twice by the Tribunal in acknowledging receipt of his review application on 19 March 2004 and inviting him (on 7 April 2004) to the Tribunal hearing of the need to provide any further documents, information or other evidence he wanted the Tribunal to consider.  Yet on 5 May 2004 he told the Tribunal that he did not ask for these documents from India until ten days before the hearing.  Further there is nothing in the material before me to suggest that the applicant made any attempt to provide the documentation to the Tribunal after the Tribunal hearing and before the decision was made. Indeed, as the translation of one of the documents annexed to his affidavit of 4 May 2005 postdates the Tribunal hearing it could not, in fact, have been provided prior to the Tribunal decision.  In that sense it can be said, insofar as it is necessary to consider it, that additional time would not have made any difference to the result.  However it is not necessary to determine this issue.  No denial of procedural fairness is established by the Tribunal’s refusal to allow the further time sought. 

21. It is not established that the Tribunal did other than properly consider the applicant’s request and, in all of the circumstances, determined not to allow further time. Such a decision is analogous with a decision of the Tribunal not to allow an adjournment of the Tribunal hearing or review. It was not obliged to grant the time sought. The Tribunal properly considered the applicant's application for further time, the reasons that he sought the further time and his explanation for not having provided the documents earlier. I am not persuaded that it denied the applicant procedural fairness or that it failed to comply with the obligations in section 425 of the Migration Act 1958 (Cth) given the prior opportunities that the applicant had to provide information in support of his claim. This is reinforced by the applicant’s failure to provide further evidence before the time of the Tribunal decision.

22. Turning to the other grounds relied on in the amended application, the applicant contends that the decision involved jurisdictional error on three bases.  The first is that the Tribunal failed to consider the applicant's evidence in respect of his political activities and membership of SAD, in particular lobbying to reduce electricity prices.  As the respondent submits, this aspect of ground one is without foundation.  The Tribunal did consider the applicant's evidence in relation to his political activities, membership of SAD and claims of lobbying to reduce electricity prices.  Indeed it accepted that he was a member of SAD and that he had assisted in seeking a reduction in the cost of electricity by lobbying.  However, for reasons which it gave which were open to it on the material before it, the Tribunal rejected as not credible the applicant’s other claims about the nature and level of his involvement in political activity and his claims of police interest, issue of a warrant and that there would be consequences for him arising out of the corruption charges being pursued against the SAD President, Mr Badal. 

23. The second aspect of this ground is that the Tribunal failed to assess the gravity of the applicant's fear of persecution due to his political activities.  Insofar as this ground seeks merits review, merits review is not available in this Court.  The Tribunal considered whether the applicant's fear was well-founded and found that it was not, given the level of political activities engaged in by the applicant.  Its findings were open to it on material before it.  It found that his fears were not well-founded. 

24. Thirdly, it is contended that the Tribunal wrongly concluded that the applicant's claim was not one of Convention nexus, particularly in the presence of evidence that the police were waiting for him to return and charge him in a corruption case.  The only such evidence before the Tribunal was the applicant's claims.  In any event the Tribunal made no findings on the basis of a lack of Convention nexus.  Rather it found that the applicant's fears were not well-founded as discussed above.  It did not accept that the applicant was wanted by the police on account of his involvement with SAD.  No error is established in the manner contended in ground one. 

25. Ground two is that the applicant was not accorded procedural fairness.  The first particular of this ground is that he was not afforded an opportunity to explain his political activities in Saudi Arabia.  However this claim is contrary not only to the Tribunal's record of what occurred in the hearing, but also to the transcript of the hearing.  In response to the question (at page 14):

    “Were you involved in any political activity in Saudi Arabia?”

    the applicant responded:

    “No.”

26. Immediately thereafter the applicant was given the opportunity to tell the Tribunal anything that had not yet been discussed.  Given that the applicant was invited to and appeared at a hearing, was told a number of times that he could submit documentary evidence and written submissions and the fact that he was asked about this issue, responded in the negative and also had an opportunity at the hearing to make any such further claims.  No lack of procedural fairness is established in the manner contended. 

27. The second particular is that the applicant was not afforded an opportunity to make comments on adverse information referred to in the Tribunal decision or that he was, at the very least, given ambiguous information during the interview. First, section 424A of the Migration Act 1958 did not require the Tribunal to disclose country information which was clearly general country information that fell within the exception in section 424A(3)(a) of the Act (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264 and QAAC of 2004v Refugee Review Tribunal [2005] FCAFC 92). Moreover the transcript of the Tribunal hearing indicates that the Tribunal in fact put to the applicant the substance of adverse country information and invited him to comment.

1. The applicant did not file written submissions or address this ground in oral submissions and there is nothing to support his claim that he was given ambiguous information in a manner constituting a denial of procedural fairness as contended. The assertion that the applicant was given ambiguous information is not established on the material before the Court. No lack of procedural fairness is established. Thus, while section 422B is applicable, it is not necessary to determine the precise effect of that section, although I note in that respect, the decision of Hely J in SMBQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1033 at [16], which would suggest that the effect of section 422B and section 424A is that section 424A covers the field in relation to the Tribunal's obligation to give the applicant notice of information that was the reason or part of the reason for its decision.

2. As discussed above, the applicant also contended that he was not accorded procedural fairness because he was not afforded an opportunity to file further evidence in support of his claim.  He was afforded a short opportunity and in fact, as I have indicated, there was a considerable delay until the Tribunal decision was handed down.  As explained above it is not established that he was not accorded procedural fairness in the manner contended. 

3. The next ground in the amended application is that the decision was an improper exercise of the power conferred by the Migration Act 1958.  First, it is said that the Tribunal took into account irrelevant considerations such as independent country reports.  However the country information referred to, particularly in relation to the charges against Badal and the situation in the Punjab and India was clearly relevant to the Tribunal's decision.  As the Full Court pointed out in NAHI v Minister forImmigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], in conducting a review, the Tribunal may get any information that it considers relevant and “There can be no objection in principle to the Tribunal relying on country information”.  As their Honours went on to say, the weight and the question of the accuracy of such information is one for the Tribunal, not for the Court.  It has not been established that the Tribunal took into account irrelevant considerations as contended. 

4. Finally, it is claimed that the Tribunal failed to investigate the applicant's evidence of fear that he would be persecuted.  This is not a case in which the Tribunal was under a duty to make any further inquiries or to investigate the applicant's claims.  (See VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459, WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 277 and W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432). Jacobson J summarised the law in this area in NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 [18] – [21]. It is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application. The Tribunal is not obliged to embark on its own inquiries except in limited circumstances. This is not a case within such limited circumstances.

5. No jurisdictional error has been established as contended by the applicant.  Accordingly, the decision is a privative clause decision to which section 474 of the Act applies and the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks that he meet the costs of these proceedings in the sum of $5500.  The applicant told the Court that he had no job and could not pay the legal costs.  However his impecuniosity is not a reason for departing from the general principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter taken into account by the respondent in determining when and how to seek to recover any costs ordered.  The amount sought is appropriate in the light of the nature of this and other similar matters.  

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: