SZFFV v Minister for Immigration
[2005] FMCA 365
•21 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFV & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 365 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and polticial persecution in India – alleged bias and bad faith – applicants attempting to tender additional evidence at the handing down of RRT decision – RRT justified in refusing to alter its decision – application dismissed. PRACTICE AND PROCEDURE – Refusal of adjournment where applicant awaiting documents to support protection visa claims and money to pay for a lawyer – applicant is already in receipt of legal advice and other assistance. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v Guo (1997) 144 ALR 567 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 NADR v Minister for Immigration (2002) 124 FCR 465 Randhawa v MILGEA (1994) 52 FCR 437 Selvadurai v Minister for Immigration (1994) 34 ALD 347 |
First Applicant: Second Applicant: | SZFFV SZFFW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3632 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 March 2005 |
| Delivered at: | Griffith |
| Delivered on: | 21 March 2005 |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court directs that exhibit A1 be returned to the applicants.
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3632 of 2004
| SZFFV |
First Applicant
SZFFY
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was signed on 28 October 2004 and handed down on 18 November 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and his wife protection visas. The applicants are a husband and wife from Gujurat in India. The relevant protection visa claims were made by the first applicant, the applicant husband. I adopt by way of background relevant parts of paragraphs 2-10 of written submissions prepared by Mr Markus on behalf of the Minister:
The applicants are husband and wife and citizens of India.[1] They arrived in Australia on 4 June 2004.[2] On 17 June 2004 the applicants lodged an application for a protection (Class XA) visa.[3] Only the applicant husband (hereafter “the applicant”) made specific claims under the Refugees Convention, the applicant wife relying on her membership of his family.
The applicant’s claims were detailed in the protection visa application,[4] and were in substance re-stated in his application for review to the RRT. [5]
In summary, the applicant claimed a well-founded fear of persecution in India on the bases of his religious beliefs (Hindu) and political opinion (as a member of the BJP). In particular, the applicant claimed to be the target of the local Congress Party leader and Muslim fundamentalists, that he was tortured and the police did not protect him.
After the Minister’s delegate refused the applicant’s application for a protection visa on 18 June 2004, the applicant applied to the RRT to review that decision on 14 July 2004.[6]
On 18 October 2004 the applicant gave oral evidence at a hearing before the RRT. [7] The applicant made the following claims: that the Muslims “took him away” “many times”. In January 2003 he was attacked by Muslim extremists and was hospitalised for a day. He did not report these incidents to the police as they would not listen. The applicant also gave evidence that he lived in New Zealand for a year prior to coming to Australia trying to set up a business but he did not claim protection there.[8]
The RRT’s decision
The RRT found that the applicant had not been harassed or harmed for a Convention reason in India and thus was not satisfied that the applicant had a well-founded fear of Convention-based persecution if he returned.[9]
The RRT did not find the applicant to be a reliable witness. [10] The RRT placed weight on the applicant’s failure to apply for a protection visa in New Zealand to find a lack of subjective fear of persecution and found that the applicant had created his claims in order to enhance his claim for a protection visa. [11]
The RRT found that there was no evidence before it to suggest that the authorities denied or failed to investigate complaints of Hindus or supporters of the BJP and was satisfied that effective protection was available to the applicant. [12]
[1] court book, pages 1, 14, 28
[2] court book, page 15
[3] court book, pages 1, 32.4
[4] court book, pages 19-22
[5] court book, page 44
[6] court book, pages 42-45, 87.7
[7] court book, page 75
[8] court book, pages 87.7-88.6
[9] court book, page 95.4
[10] court book, page 92.7
[11] court book, page 93.2
[12] court book, pages 93.10-94.2
The applicants rely on their application for judicial review filed on 14 December 2004. The applicants also rely upon written submissions filed on 8 February 2005. At a callover conducted this morning the first applicant sought an adjournment. He told me that he was expecting to receive documents from India that would support his protection visa claims. He also told me that he was expecting to receive money from India that would enable him to obtain legal representation. I declined the request for an adjournment. As to the documents, the first applicant told me that the documents he is anticipating have not been previously available to him. The documents were not available at the RRT hearing. I do not consider that they would be likely to assist me in determining whether the RRT made any jurisdictional error. I also note that a directions hearing was conducted in this matter on 23 December 2004. The applicants were given until 25 February 2005 to file any evidence they wished to rely on. Nothing was filed. Apart from a document I have marked as exhibit A1, the only evidence I have before me is the court book filed on 18 January 2005. Exhibit A1 is a standard form information sheet written in English on one side and in Hindi on the other side. The information sheet advises applicants what will happen on the handing down of an RRT decision. The first applicant told me that he received exhibit A1 at around the time the RRT decision was handed down in this matter. I accept that.
I declined to adjourn these proceedings further for the applicants to obtain legal representation having regard to the facts that they have already received assistance in preparing their written submissions and have participated in the Minister’s pilot advice scheme. The first applicant showed me a letter dated 20 January 2005 from his panel adviser. The content of that letter is legal advice which is of no concern to me. What is of concern to me is the fact that the applicants have received legal advice.
The grounds in the judicial review application are numerous but none are particularised. The applicants’ written submissions appear to have been prepared with the assistance of someone with some understanding of legal issues. However, the issues raised in the application and written submissions do not necessarily bear any relationship to the RRT decision in this matter. The first applicant asserts that he is a genuine refugee. To that extent, he is contesting the merits of the RRT decision. As I explained to the applicant, I cannot review the merits of the RRT decision.
The applicants also assert actual bias and bad faith. Those are serious allegations and I invited the first applicant to explain them. The first applicant, by way of explanation, referred to what happened when he attended the handing down of the RRT decision on 18 November 2004. He told me that he had attempted at that time to present additional evidence. That additional evidence was the documents appearing on pages 78 and 79 of the court book. The first applicant told me that the document appearing on page 78 was a repair invoice relating to his motor scooter. It is apparent that the document on page 79 is an account for medical attention at a medical facility in Ahmedabad. The first applicant apparently believed that these documents supported his claim that he suffered harm at the hands of Muslim extremists in January 2003. The first applicant asserts that the RRT would not consider his additional evidence.
It is important to bear in mind that on 18 November 2004, the first applicant was attending the handing down of the RRT decision. He and his migration agent had been told on 20 September 2004 that the RRT was unable to make a favourable decision on the basis of the information that had been submitted at that point. The first applicant and his migration agent should then have been aware that something further was going to be required to persuade the RRT that he and his wife were entitled to protection visas. The first applicant was invited to a hearing and did attend a hearing on 18 October 2004. The RRT decision and reasons refer to what occurred at that hearing.
On page 88 of the court book, at the top of the page, the presiding member refers to the first applicant’s evidence concerning an accident early in 2003. The presiding member says that the first applicant told her that he went to hospital and that he had a hospital bill in his house. The first applicant told the presiding member that he was in hospital for a day and suffered bruises to his body. He did not report the accident to the police as he considered it useless to do so.
On 29 October 2004 the RRT wrote to the first applicant and to his migration agent to advise that a decision had been made and would be handed down on 18 November 2004. It is apparent from that document[13] that the RRT had by then made up its mind. However, Mr Markus was prepared to concede that even at that point, if the first applicant had notified the RRT that he had additional evidence that he wanted the RRT to take into account, the RRT would have to have considered it. The problem is that the first applicant did not present that evidence until the decision was handed down on 18 November 2004. Even then, however, the available evidence is that the documents were received and considered.
[13] court book, page 76
On page 80 of the court book is a letter dated 18 November 2004 bearing a handwritten notation that a copy was given to the first applicant at the time of the handing down of the RRT decision. The letter is curious in that it refers to the handing down of the decision in both the past tense and the future tense. I accept Mr Markus’ submission that what probably happened what that when the first applicant attempted to present his documents to the RRT at the time of the handing down, there was a short delay. That delay enabled the presiding member to examine the documents and for the letter to be prepared. The handing down was completed and the letter presented to the first applicant. It is apparent that the presiding member was unwilling to change her decision based upon the two additional documents. That is understandable because, at best, the documents could only establish that the first applicant had suffered some form of traffic accident in January 2003 in India. There was nothing in the documents that so cogently supported his claims of persecution that required alteration to the decision of the RRT and its reasons.
I am satisfied that there was nothing unfair in the procedure followed by the RRT. The events at the time the decision was handed down certainly do not support the allegation of bias and bad faith. No other evidence of bias or bad faith has been advanced by the applicants.
The applicants’ written submissions raise s.424A of the Migration Act 1958 (Cth) as an issue. However, I have not been taken to any adverse information that should have been disclosed to the applicants and was not disclosed. The written submissions also seek to draw support from the High Court decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. However, no evidence has been produced by the applicants to support that assertion.
I agree with and adopt for the purposes of this judgment Mr Markus’ written submissions in paragraphs 13-19:
The grounds pleaded in the application for review are not supported by any particulars. The applicant’s written submissions seek inter alia to rely on the ground of bias, although bias was not in terms pleaded in the application for review. Insofar as the applicant does rely on the ground of bias, the respondent submits that in the circumstances of this case, there is no basis for any allegation of bias, whether actual or apprehended, on the part of the RRT. A failure to accept the applicant’s evidence is not in itself capable of establishing bias.
The respondent has not been served with any evidence in support of the application; in particular, there is no evidence to support the applicant’s attempt to rely on Muin and Lie: see NADR v Minister for Immigration (2002) 124 FCR 465 at [22] to [26].
The RRT’s decision is based on findings of fact, including findings in respect of the credibility of the applicant and his claims of persecution.
Generally, it is accepted by the respondent that “proof” of persecution in the context of an application for protection visa is a matter of some complexity, and that a liberal attitude on the part of the decision-maker is called for, since a person who claims to be a refugee may have difficulties in proving his allegations: Randhawa v MILGEA (1994) 52 FCR 437 at 451.
On the other hand:
·The merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses, are for the RRT to determine: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292.
·The RRT does not have to possess rebutting evidence before holding that a particular assertion is not made out: Heerey J in Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348.
·Nor is the RRT required to accept uncritically any and all claims made by an applicant: Beaumont J in Randhawa ibid at 451.
·On review of an adverse decision by a delegate of the Minister, such as here, it is for the applicant to satisfy the RRT that all of the statutory elements are made out: Minister for Immigration v Guo (1997) 144 ALR 567 at 596. The criteria for the grant of a protection visa require that the RRT be “satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”: Regulation 866.221.
In the present case, the RRT identified in detail the various implausabilities on which it based its findings regarding the applicant’s credibility and the credibility of his claims.
There is no legal error disclosed in the RRT’s decision, or approach to the applicant’s claims, let alone an error going to the jurisdiction of the RRT.
There is no jurisdictional error in the decision of the RRT. The decision of the RRT is therefore a privative clause decision. I will dismiss the application.
On the question of costs, I am satisfied that costs should follow the event. Mr Markus seeks $4,000 in costs. I am satisfied that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister. Neither applicant wished to be heard on costs. I will order that the applicants pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000. I will direct that exhibit A1 be returned to the applicants.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 April 2005
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