SZFFY v Minister for Immigration
[2005] FMCA 1439
•14 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFY v MINISTER FOR IMMIGRATION | [2005] FMCA 1439 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision not to grant a protection visa – where applicant did not attend the RRT hearing – applicant sent medical certificate on the morning of the hearing – Tribunal then rescheduled hearing in eight days time – Tribunal informed applicant of rescheduled hearing by express post – applicant did not attend rescheduled hearing – procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.426A; 475A |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed |
| Applicant: | SZFFY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3635 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 September 2005 |
| Date of Last Submission: | 14 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent's costs fixed in the sum of $4,500.00 and I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3635 of 2004
| SZFFY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal made on 1 November 2004 after a hearing originally scheduled for 19 October 2004. The hearing was rescheduled at the request of the applicant who faxed a medical certificate to the Tribunal stating that he was unwell and unable to attend.
The Tribunal rescheduled the proceedings to 27 October 2004 and again invited the applicant to attend and give evidence. According to the Tribunal decision, the applicant did not attend the rescheduled hearing nor did he contact the Tribunal to explain his failure to attend.
The Tribunal made the decision to deal with the application without taking any further steps to enable the applicant to appear. In doing so it exercised its powers under s.426A of the Migration Act. The Tribunal handed down its decision on 1 December 2004 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant seeks a review of that decision. He filed his application for review on 23 December 2004. He filed his amended application on 17 March 2005. It is this amended application upon which the applicant has proceeded today. He seeks two orders as follows:
1) A writ of certiorari to quash the RRT decision;
2) A writ of mandamus to compel the RRT to consider the application according to law.
He also seeks an order for costs.
As the applicant seeks a writ of mandamus, it is quite clear that the application does come within the scope of s. 39B of the Judiciary Act and the Federal Magistrates Court has jurisdiction to hear this matter under the provisions of sub-s 39B(1EA) of that Act.
The background to these proceedings is that the applicant is a citizen of India. According to the Tribunal decision, the applicant arrived in Australia on 3 August 2003. On 29 June he lodged an application for a protection visa. Copies of the application forms appear in pages
1 to 28 inclusive of the Court Book, but they are so faint and appear to have been completed in pen or pencil that they are unreadable.
The applicant annexed a document headed "Statement of Claim" dated
23 June 2004 in which he set out the grounds upon which he claims his eligibility for a protection visa. He says that he was born on
15 March 1977 in India. He completed tertiary education up to a Bachelor of Science in India, he joined the Indian Congress Party and was indeed, as he said, head of the party in his town and as a result of his political involvement was widely known.
He claimed that as a result of his political involvement he attracted the attention of extremists including two extremist parties known as the RSS and Shev Sinh. This attention which came his way included circumstances where he was beaten very badly. He said that he reported the matter to the police many times but was not given protection. He said the extremists used propaganda against him including accusing him of being Muslim in the shape of a Hindu.
He said that in the month of September 2003 he was attacked whilst going to attend a meeting in his area.
This appears to be at odds with the statement contained in the decision of the Refugee Review Tribunal that the applicant arrived in Australia on 3 August 2003. Quite clearly, if he had arrived in Australia on
3 August he would not have been attacked in India in September, but the applicant has indicated that the date of his arrival in Australia as believed by the Refugee Review Tribunal is not in fact correct.
A delegate of the Minister refused his application for a protection visa on 8 July 2004. On 9 August that year the applicant then applied for a review of that decision. What then happened was that after the applicant lodged his application the Refugee Review Tribunal wrote to him on 13 September 2004. The letter was in the usual terms of a hearing invitation letter, as currently used by the Tribunal, saying that the Tribunal 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 then invited him to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. They then told the applicant he could also ask the Tribunal to obtain oral evidence from another person or persons.
The hearing was scheduled to take place at 9.30 am on Tuesday,
19 October 2004. The letter asked the applicant:
Please arrive at least 15 minutes before the start of the hearing.
The letter went on to tell the applicant that the Tribunal would only change the hearing date for good reasons and said:
If you think you might be unable to attend the hearing you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.
The Tribunal included a response to hearing invitation form in that letter. One copy was sent to the applicant at his then home address in the Sydney suburb of Parramatta and another letter was sent to his migration advisor.
On 18 October 2004 the Tribunal received the response to hearing invitation duly completed. In answer to the question, "Do you want to come to a hearing" the box marked "Yes" had been ticked and the applicant sought the assistance of an interpreter and indicated that he wished to bring his migration agent, Mohammed Zahirou Quok Mollah, with him. That document bore the date 17 October 2004.
The hearing was scheduled for 9.30 am on 19 October, the applicant did not appear. What did happened was that at approximately 10.15 the Tribunal received a faxed copy of a medical certificate from
Dr Tyab Salim, that certificate indicated that Dr Salim had examined the applicant the day before and diagnosed him as suffering with a minor illness and certified that he would be unable to attend Court from 18 October until 21 October. Written on the faxed copy of the certificate was a reference to the applicant's name and file number, and the words "Dear Sir/Madam, please adjourn the hearing I am sick" with the applicant's initials and the date 19 October 2004.
It is clear from the hearing information form on page 61 of the Court Book that the Tribunal in the box marked "Hearing Outcome" deleted the words "No Show Applicant" and included the words "Postponed by A/N".
That same day the Tribunal sent a further letter to the applicant informing the applicant that the Tribunal had received the medical certificate and that the Tribunal member reviewing his case had rescheduled his hearing. The letter invited the applicant to attend at 11.30 am on Wednesday 27 October 2004 and gave the name of an officer of the Refugee Review Tribunal together with a telephone number and asked the applicant to immediately telephone that officer and tell the Tribunal whether the applicant would attend the hearing.
Page 63 of the Court Book, the "Hearing Information Form" shows that the applicant did not attend the hearing. Indeed the applicant concedes that he did not attend the hearing. The Tribunal wrote to the applicant on 9 November informing him that the Tribunal had considered all the material relating to his case and had made its decision and that that decision would be handed down on 1 December 2004.
The next thing that happened was that on 11 November 2004 the registered post letter forwarded to the applicant at his home address was returned unclaimed marked "Return to Sender".
The Tribunal handed down its decision on 1 November and refused the applicant's application. The Tribunal affirmed the decision not to grant a protection visa to the applicant.
In his amended application the applicant sets out a number of grounds upon which he claims that the Court should quash the RRT decision and issue a writ of mandamus to return the application to the Refugee Review Tribunal for reconsideration. The grounds are the following:
That the RRT decision was effected (sic) to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
The applicant attended the hearing today and I asked if he wished to address me in respect of that particular ground and expand upon its meaning. The applicant indicated that he had nothing to add to what was on the document.
For the respondent, Mr Potts of counsel indicated that he did not understand what the actual ground meant. I too am not able to ascertain the meaning of this particular alleged ground. I note that I have seen this particular "ground" before and it appears to be one of a collection of grounds for review that circulates in the community.
In previous cases I have commented that I have not been able to understand what it means, and I am still not.
I note that the ground appears to be circulating because the particular spelling errors of affected spelt with an "e" and whether spelt with an "a" as in weather in the meteorological sense, rather than otherwise appear each time. It is not a ground for review; it is meaningless.
On the second page under the heading "Particulars" are in fact a variety of statements, which, as Mr Potts of counsel submitted to me, should more properly be considered as separate grounds.
The first paragraph on page 2 begins:
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on my political opinion.
The balance of the paragraph refers to the facts of the applicants claim and is in fact no more than a request for merits review. It is well established that a Court conducting judicial review cannot and does not embark upon a review of a Tribunal decision on the merits. A Court conducting judicial review does not reconsider factual findings made by the decision maker and substitute its own decision for that of the decision-maker.
The unavailability of merits review in application for judicial review of administrative decision-makers decisions is well established and I refer to the decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 which is particularly well known decision.
The applicant goes on in the second paragraph to say:
I was persecuted because of my political popularity. I refer my PV (protection visa)
application. It is true I did not collect more relevant documentary evidences to prove my persecution.
I would comment in the first paragraph of page 2 the applicant refers to obtaining more documentary evidence to present to the Tribunal.
He indicated that that documentary evidence would include evidence of his complaints to the police about the assaults and threats to which he had been subjected by extremists whilst in India.
The applicant submitted that he would appreciate it if the application could be returned to the Refugee Review Tribunal for a hearing and in the time between hearing this application and a rescheduled Tribunal hearing, the applicant would be able to collect all of his documents from India.
He said that because of his involvement in politics in India he was attacked three times and had complained to the police, but was unable to obtain protection. He did not have those documents at this stage, notwithstanding the fact that he had lodged his application for review with the Refugee Review Tribunal on 9 August 2004, because his family members were not living where he had come from and were not able to obtain them for him. Now he says that the situation has calmed down and they have returned. It was a problem for his family members to obtain this documentation before, but he believed that that would now be available. He indicated that it was not possible for those documents to be mailed to his relatives and his migration agent had not been able to obtain this documentation for him to present to the Tribunal.
In my view the second ground on page 2 is again no more than a plea for a merits review.
The third paragraph on page 2 says:
The Tribunal satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The applicant did not take up the offer to expand upon this statement except to agree that he was indicating in his application that the Tribunal's finding was not based on either a rational or logical premise.
In my view without further particulars for assistance I am not able to detect any irrationality or illogicality in the Tribunal's decision and in any event querying a Tribunal's factual findings on the basis of rationality or logic requires more than a cavilling at the findings in order to be able to establish jurisdictional error.
As long as the findings of the Tribunal are open to it on the evidence then the Court will not interfere with what is no more than a factual finding.
The next two paragraphs to my mind relate to in fact the one ground, and I will regard them as in fact the one ground:
The Tribunal did not observe Migration Act (1958) properly to making the decision. The Tribunal failed to consider my claims with the proper way which the Migration Act provided in my claims.
The applicant was not able to indicate what parts of the Migration Act had in fact not been observed by the Tribunal and did not wish to add anything to his submission.
What I do intend to do is deal with some issues raised by Mr Potts for counsel in his submission about the compliance with ss.425A and 426A of the Migration Act and I will deal with that issue a little bit later.
The final statement on page 2 is not a ground. It merely indicates that the applicant would provide more details in his written submission which was not in fact supplied.
On page 3 the first ground again under the heading "Particulars" says:
The Tribunal finding that the totality of the country information does not show that the Congress I politicians are not persecuted in India.
The reference here is to politicians and people involved in politics with the Congress party, and complains that country information does not indicate that people involved with the Congress party are not persecuted in India.
There are two points to be made there. First of all, as Mr Potts of counsel submits, the Tribunal did not find against the applicant on the ground that the country information said that Congress party politicians are persecuted. The Tribunal most certainly did consider country information under the heading "Independent Evidence" and that can be found in a lengthy passage beginning at page 78 of the Court Book and going through to page 82 of the Court Book. It certainly refers to the fact that members of the Hindu faith have been victims of violence and interestingly enough notes that in the 2004 national elections that the opposition Congress party led by Sonia Ghandi swept to a surprise victory in the country's general elections. That is however is of course a factual matter which is within the province of the decision maker and not of the Court on review.
But it is certainly not the situation that the country information denies that people involved in politics with the Congress party had not been persecuted.
In any event it is not appropriate for the Court to examine and analyse country information if it leads only to a factual finding by the decision maker. Again merits review is not a function of the Court conducting judicial review.
The next ground relates to the applicant's non-attendance at the hearing and the rescheduled hearing. The particulars are:
I did not get an opportunity to attend the Tribunal hearing because I was sick, I provided medical certificate. I agree with my lack of knowledge and I did not provide my oral evidence to support my review application. My request to the Honourable Federal Magistrate gives me an opportunity to give my oral evidence to establish my claims. Please return my application to the RRT for further consideration.
It is clear that on reviewing the applicant's written application for review the Tribunal had arrived at the conclusion that it was not able to make a decision favourable to the applicant solely on the basis of that information. Accordingly under s.425 of the Migration Act, it invited the applicant to attend the hearing. The letter of invitation was sent to the applicant at his then home address, which was I note the address that the applicant gave on his amended application which he filed in this Court on 17 March this year.
It is clear that the applicant was made aware of the hearing on that day. For a start on 18 October 2004 the response to hearing invitation was received by the Tribunal having been dated 17 October 2004.
It indicated that the applicant wished to come to the hearing.
The following day a faxed medical certificate was received from the applicant indicating that he was not able to attend the hearing today because he was sick.
As to the degree of notice given to the applicant under s.425A of the Act, it is clear that the applicant was invited by means of a letter of
13 September 2004 to attend the hearing scheduled for 19 October 2004. Allowing for the ordinary course of post the applicant was given more than one months notice on the original hearing which complies with the statutory requirement.
What the Tribunal did on receiving the notification at approximately 10.15 on the morning of the hearing, which was scheduled to start at 9.30, was to make a decision to reschedule the hearing to a date outside the time which the medical certificate indicated the applicant would be unable to attend the Court hearing. The medical certificate indicated the applicant's unfitness from 18 October, the date of examination by Dr Salim, until 21 October. The hearing was rescheduled for
27 October which was six days after the final date on Dr Salim's certificate.
The applicant told the Court today that he did not attend the hearing on 27 October because he was still unwell, although he had not further contacted Dr Salim or presumably any other medical practitioner in respect of his continuing illness. He indicated that he was not able to contact the Tribunal on the rescheduled hearing day. He said, "I was not able to inform them I was not coming", he was still sick.
The applicant did not tell the Court as to why he was unable to tell the Tribunal that he was not able to come to a hearing at the same place on 27 October when he had been able to communicate with them by facsimile on 19 October. I note that the rescheduled hearing letter to the applicant gave a telephone number with the name of an officer of the Refugee Review Tribunal seeking to be contacted about that matter.
I have also had the opportunity to observe the applicant today and whilst he did from time to time require the services of the interpreter, at other times he was certainly able to speak conversational English and was able to address the Court and put points to the Court in an acceptable and, if I may say so, courteous way.
The respondent has referred me to the decision of SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026, that is an appeal decision from this Court relating to a matter where an applicant had not attended the Refugee Review Tribunal hearing. It is a decision of the Honourable Conti J exercising the jurisdiction of the Full Court of the Federal Court and hearing an appeal from this Court. His Honour in SZDQO (supra) refers to a situation not dissimilar to that before this Court today.
The facts of SZDQO (supra) insofar as they are relevant are set out in paragraph 3 of his Honour's decision. The relevant parts in that paragraph are as follows:
In short the appellant did not attend the Tribunal hearing scheduled 29 March 2004 on the basis of an illness certified by Dr Loi Phan of the Multi Care Family Medical Centre at Ashfield. Nor did the appellant attend the Tribunal on the rescheduled date fixed for 8 April 2004 when the Tribunal member formally affirmed in the appellant’s absence the delegate’s decision not to grant a protection visa.
In the decision of SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (supra) which is I might add, binding upon this Court as it is an appellant decision from this Court, his Honour set out the provisions of ss.425, 425A and 426A of the Migration Act. Section 425 to which I have previously referred says:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C (1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitle led to appear before the Tribunal.
I would comment at this stage that it is clear that the Tribunal did comply with s.425 in the proceedings before me.
Again in the decision in SZDQO (supra) his Honour set out the provisions of s.425A relating to the notice of invitation to appear, that of course sets out the period of notice that must be given to an applicant to appear before the Tribunal and provides in subsection 3:
The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
Again it appears clear in the case before me that the Tribunal complied with the requirements of s.425A in giving notice to the applicant of the invitation to appear before it.
The decision in SZDQO makes it clear that the Tribunal when rescheduling the hearing for the applicant in that case, 10 days later, outside the time covered by the medical certificate complied with the requirements of sub-s 3 of s.425A.
The decision in SZDQO also sets out the requirements of s.426A relating to failure of the applicant to appear before the Tribunal. In my view it is clear that the Tribunal in the case before me as in the case of the Tribunal in SZDQO that inviting the applicant to attend the rehearing did in fact comply with both ss.425 and 425A. Paragraph 18 of the decision in SZDQO, and I would comment that the decision is in fact an appeal from one of my own decisions, says as follows:
On the plain language of section 426A (2) the Tribunal was empowered in the foregoing circumstances to reschedule the appellant's appearance before it and the issue as framed
by the Minister is whether or not the requirement of section 425A at least as to the prescribed period of notice therein stipulated, applied to any notification of the appellant of that rescheduling at least in circumstances of the instance of the appellant has here occurred. The Minister supported scale of FM's finding of the Tribunal complied with sections 425 and 425A in inviting the appellant of 29 March 2004 hearing in the manner it did.
Thus the Minister was not required to re-comply with the latter provision in rescheduling the hearing. Meaning thereby that the appellant was not entitled to 14 days prescribed period of notice in section 441C deeming provisions do not apply. His Honour held that reasonable notice was given by the postage of the letter by express post on 30 March 2004 to the appellant.
It appears to me, with respect, that the decision in SZDQO v Minister for Immigration & multicultural & Indigenous Affairs clearly indicates that the Tribunal complied with the requirement for reasonable notice. It was not required to re-comply with 14 days notice of the rescheduled hearing and in the circumstances the Tribunal was within its rights to exercise its power under s.426A of the Migration Act to proceed to determine the application for review on the basis of the material before it without giving the applicant a further opportunity to attend an hearing.
It should be borne in mind that on the second occasion the Tribunal had not received any explanation as to the failure of the applicant to attend the rescheduled hearing.
I am referred to the case management sheet at p 86 of the Court Book which sets out a series of steps taken, I note that that document that says that it was printed on 2 December 2004, the submission that the Evidence Act allows me to receive that document into evidence as a business record under the provisions of the Evidence Act is one that appears to me to be correct.
The relevant part of the document on p 86 can be found at about point 5 on the page, 26.10.04, meaning 26 October 2004, phoned to the advisor about RTHI:
The advisor informed me that he was not sure if the applicant would attend the hearing tomorrow. He told me he would contact the applicant and let me know.
And then the name of the officer appears. 1 November 2004 - file in drawer after sealing of decision; 11 November 2004 - return to sender letter received; 2 December 2004 - DIMIA file returned to DIMIA.
The letter that was returned to sender is quite clear, is the original invitation to hearing letter. The one that invited the applicant to attend the hearing on 19 October. It is not the express post letter that was forwarded to the applicant and to his migration advisor on 19 October inviting the applicant to attend the rescheduled hearing.
I am mindful of the affidavit of Sharon Ann Burnett setting out the relevant particulars of the express post transactions which took place, and I am satisfied that the applicant would in fact have received the rescheduled hearing letter the day after it was posted. Indeed the applicant, in fairness to him, has not made any challenge to the receipt of information about the rescheduled hearing. His explanation was that he was still sick but was not able to contact the Tribunal to inform them of that fact for reasons that he did not provide.
I was referred by counsel for the respondent to the decisions of Smith FM in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 972; (2004) 213 ALR at [439] and also the subsequent decision of his Honour in SZEMB & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 448.
The decision in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (Supra) is relevant in that the Court noted that the Refugee Review Tribunal believed that a request by the Refugee Review Tribunal for additional information had not been returned to the Tribunal and the Tribunal failed to consider evidence on file that the applicant did not receive that request, accordingly his Honour remitted the matter to the Refugee Review Tribunal. In my view the decision in SZDOG can be distinguished on the facts because that is not the fact situation in the case before me. It is clear that the applicant was aware of the original Tribunal hearing and indeed had indicated his intention to attend.
It is a fact that the Tribunal rescheduled the hearing because of the applicant's illness to a time outside the period covered by the medical certificate and that the applicant has not challenged the fact that he was aware of the date of the rescheduled hearing.
There is no evidence that the letter advising the applicant of the rescheduled hearing was returned unclaimed and it is also relevant in the case before me that in each case the applicant's migration advisor, an authorised recipient of correspondence was aware of each hearing. Indeed there is evidence that the Tribunal telephoned the migration advisor the day before the rescheduled hearing enquiring about the applicants intention to attend the rescheduled hearing the day before and the conversation is recorded that the migration advisor did not know, which would clearly indicate that the migration advisor did not intend to appear, but the migration advisor would ask the applicant and find out whether the applicant was going to attend.
To my mind the fact situation in this case is on all fours with the fact situation in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs which is a decision that I am bound to follow.
I note the decision of my learned colleague in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs would not in any event be binding upon me, although with respect, I would regard it as highly persuasive unless I was satisfied that it were wrongly decided or unless I was satisfied that it could not be distinguished. In my view it can and should be distinguished on its facts.
There are two other issues that should be referred to. First there is the statement by the applicant in his amended application and his reference to lack of procedural fairness as being jurisdictional error. What his says is:
Without the oral evidence if the Tribunal made a decision, the decision effected be the procedural fairness. I refer High Court judgment Plaintiff S157 & Commonwealth of Australia
4 February 2002.
Clearly if a Tribunal decision is tainted by a denial of or lack of procedural fairness, then it would not be difficult for a Court conducting judicial review to find jurisdictional error. The fact that oral evidence from an applicant was not taken at the time the Tribunal made its decision and handed down its decision, is not of itself a denial of procedural fairness if it can be shown that the Tribunal complied with requirements of ss.425A and 426A, in each case I am satisfied that it is so.
The only other point which was raised in fairness by Mr Potts of counsel appears at pages 83 and 84 of the Court Book where the Tribunal in its decision that the Tribunal could not be satisfied that the applicant had not been able to relocate to an area of India where he would not be pursued by his alleged Hindu extremist enemies.
This is of course covered by the well known decision Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and has more recently been considered by the Full Court of the Federal Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37, that was a Full Court decision on appeal from the decision of a Federal Magistrate.
It related to the unsatisfactory situation of the Tribunal's finding that the appellant in that case was not able to relocate to another part of Fiji.
It was described by her Honour Branson J as at par 18, 19 and 22 of her Honours decision. Her Honour says at par 22:
The Tribunal was required to give consideration to how in a practical sense the appellant could reasonably be expected to relocate within Fiji.
Her Honour had taken note of the fact that the Tribunal did not as was set out in the decision of Black CJ in Randhawa (supra) in pages 442 and 443 of that decision:
That in the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered and if it is not reasonable in the circumstances to expect a person who has a welfare of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality it may be said that in the relevant sense persons fear of persecution in relation to that country as a whole is well founded.
The appeal in NAIZ (supra) was successful because the Full Court found that the Tribunal has misconceived the content of the requirement, that it not be unreasonable for the appellant to relocate within Fiji because the Tribunal did not ask itself the right questions before determining that it was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations.
True it is that the pages 83 and 84, the relocation question was dealt with in a relatively sketchy way by the Tribunal member. The Tribunal referred to independent evidence and then went on to say:
In the light of this the Tribunal cannot be satisfied and finds that the applicant has not been able to relocate to an area of India where he will not be pursued by his alleged Hindu extremist enemies. This is particularly as given the vast size of India, it would seem fanciful that the applicant is known the length and breadth of India such that his actions in Hyderabad would be known wherever he might settle that Hindu extremists would pursue him there. Further the Tribunal also notes that the BJP has now lost national government to the more inclusivist Congress Party and that this leads the Tribunal not to accept the applicants claim that India is becoming increasingly or difficult or dangerous for those who oppose communism and that he could not turn to his party, the Congress, to assist him.
In my view the Tribunal member turned his mind to the question of relation and it should be borne in mind that the Tribunal was dealing with this case in the absence of oral evidence from the applicant. The Tribunal appears to me to have done its best to consider that question in a realistic way based on the material before it. The Tribunal was hampered by the fact that the applicant did not attend to give evidence, notwithstanding the fact that the hearing has been rescheduled and that the Tribunal had complied with its obligation to give the applicant adequate opportunity to attend to give oral evidence.
In my view the situation in this case can be distinguished with respect from the facts situation that was before the Full Court of the Federal Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affair. In arriving at this decision I am mindful of the fact that the applicant is not legally represented. I have read through the decision of the Refugee Review Tribunal with care and I have endeavoured to satisfy myself whether or not there is any other circumstance where it may appear that there has been a jurisdictional error. I am unable to identify any other jurisdictional error which would allow the Court to find that this matter should be remitted to the Refugee Review Tribunal. To my mind this is a "privative clause decision". It attracts the protection of s.474 of the Migration Act.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 26 September 2005
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