SZGFX v Minister for Immigration - [2006] FMCA 1436

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGFX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1436

MIGRATION – RRT decision – Indian Hindu fearing political persecution in India – did not attend hearing – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 425, 425A, 426A(1), 441A(4), 441G, 474, 474(1), 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 104
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZGFX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1173 of 2005

Judgment of:

Smith FM

Hearing date:

13 September 2006

Delivered at:

Sydney

Delivered on:

13 September 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1173 of 2005

SZGFX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 6 May 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 March 2005 and handed down on 5 April 2005. The Tribunal affirmed a decision of a delegate made on 13 December 2004 refusing to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are limited by s.474, so that I do not have power to send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in November 2004. On 26 November 2004 an application for a protection visa was lodged on his behalf by a migration agent, Mr Chetan Zabde, trading as Zenith Migration Services in Melbourne. According to the delegate’s decision the applicant had arrived in Australia to attend an Indian technology and trade fair. The delegate said:
The applicant’s claims are identical to a number of other applications received by the department. Their claims are almost verbatim, and are very general in nature and are non‑specific. They rely on presenting the Hindu majority in Gujarat as disenfranchised to the point of persecution as a result of the last elections which saw the ruling BJP lose nationally to the Congress party.
The present applicant claimed that he was a member of the BJP political party, and a Hindu. His protection visa application said:
In June 2004, BJP lost the elections in the state [of Gujurat] and the Centre Congress‑I came to power and started harassing BJP supporters. I was attacked a few times by the Congress‑I Muslim supporters. They threatened to prosecute me and other BJP supporters on a regular basis.
I ran from that country for fear of prosecution and harassment.
No details of his claims were provided to the Department nor to the Tribunal, and no supporting evidence was ever provided.
In her decision made on 13 December 2004 the delegate, as well as pointing out the similarity of this claim to others, also pointed out that “the BJP supporting Hindu majority has retained the upper hand in Gujurat”.
The delegate’s letter was sent to the applicant at his home address in Griffith, as well as to his agent in Melbourne.
An application for review by the Tribunal was filed by his agent on 11 January 2005 in Sydney. It was not accompanied by any supporting material. It requested the Tribunal to send correspondence about the application to his authorised recipient, being his agent.
The Tribunal sent to the agent a letter, also copied to the applicant, acknowledging receipt of the application and inviting him to “immediately send us any documents, information or other evidence you want the Tribunal to consider”.
A further letter was sent on 27 January 2005 addressed to the agent, informing the applicant that:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to attend a hearing “to give oral evidence and present arguments in support of your claims”. The hearing was appointed for 28 February 2005 in Sydney. The letter informed the applicant and his agent:
The Tribunal will only change this hearing date for good reasons. 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 letter again invited the applicant to send to the Tribunal “any new documents or written arguments you want the Tribunal to consider”. A brochure explaining the hearing was enclosed together with a “Multilingual advice”.
The applicant was asked to inform the Tribunal whether he intended to attend the hearing. Such a response was received by the Tribunal on 25 February 2005 signed by his agent, indicating that the applicant would attend.
In its statement of reasons, the Tribunal explained what happened:
On 27 January 2005 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 February 2005. Several days before the hearing, with no response received, the Tribunal tried to contact the applicant’s adviser on the phone number he supplied. The Tribunal spoke to the adviser on 25 February 2005 and the latter apologised for not informing the Tribunal that the applicant wished to attend the hearing. On that same day, the applicant advised the Tribunal in writing that he wanted to give oral evidence. That is, the offer of hearing form was faxed back, completed, to the Tribunal, which then organised the appropriate interpreter for the hearing.
However, the applicant did not attend the hearing on 28 February 2005 nor contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
In my opinion, the Tribunal was plainly empowered by s.426A(1) to proceed in that manner. I am satisfied that the invitation letter was properly sent to the applicant’s authorised recipient pursuant to the requirements of s.441G and the posting and service provisions of s.441A(4) and reg.4.35D of the Migration Regulations 1994 (Cth). There is no evidence before me to suggest that the Tribunal’s discretion to proceed under s.426A(1) miscarried.
The applicant has not attempted to present any evidence to the Court explaining his absence from the hearing. The affidavit which he filed contains argumentative matter, but no pertinent facts. In his written submission and unsworn oral statements today, he makes the assertion that he was not told by his agent of the hearing appointed by the Tribunal until it was too late. Whether that is true, is not something I can determine on the evidence before me. However, assuming it is true, the applicant does not contend that any communication to the Tribunal was made which should have alerted it to the possibility that he had not been informed of the hearing by his agent or wanted a rescheduled hearing.
As has been made clear by many Full Court decisions, it is irrelevant that the applicant might not have received actual notice of the hearing. The Tribunal’s power to proceed under s.426A(1) is available, even if circumstances were shown which would otherwise show a failure of procedural fairness (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15], SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17], and Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]). Greenwood J recently reviewed all these authorities, and explained why the Tribunal has no duty to make further inquiries when an applicant does not attend the scheduled hearing, even where a “yes” response to the invitation has been received (see NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 104).
In its statement of reasons, the Tribunal shows that it clearly understood the claim made in the visa application. It pointed out the inadequacies in the information provided. It pointed to the delegate’s reference to the fact that: “although Congress‑I won the national elections, … the BJP – the applicant’s party – is still in power in the state of Gujarat”. It said:
The applicant has not sought to put other material before the Tribunal to counter those statements of the delegate, and has not taken the opportunity to speak directly with the Tribunal and present oral testimony in support of his claims.
On the evidence before it, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution within the meaning of the Convention.
The Tribunal’s decision was plainly correct, and I can see no factual or legal or jurisdictional error affecting its decision.
The applicant has filed numerous documents in the Court in recent days containing purported legal arguments. The application he filed on 6 May 2005, and an amended application filed on 10 August 2005, merely repeated assertions of refugee status. However, an amended application filed on 17 August 2006, long after the date appointed by earlier directions of the Court, contains five pages of contentions. I do not propose to go through each of them in detail. As I shall explain, none of them, in my opinion, has any arguable merit.
The central contention, which is made in various ways, is that the Tribunal’s letter of invitation to the hearing did not accord with the obligations of the Tribunal under ss.425 and 425A of the Migration Act because “no firm and concrete representation was made to indicate that the applicant had to attend the hearing to give evidence”.
It is contended that the Tribunal “ought to have informed the applicant in writing that it (Tribunal) was ready to make its finding on the matter and the applicant had one last chance to make any further final representations”.
It is also contended: “at no stage did the Tribunal give the applicant a clear, concise and accurate account of its procedures and in not doing so denied the applicant procedural fairness”.
In my opinion, there is no substance in any of these contentions. As I have recounted above, the Tribunal did invite the applicant according to the requirements of the Act. Moreover, I consider that its letter could not have been clearer. It plainly told the applicant that the Tribunal had been unable to decide his case on the material that the applicant presented to the Department and the Tribunal. It plainly told him that the Tribunal could proceed to make a decision in his absence if he did not attend the hearing. That is what the Tribunal did. I can see nothing unfair in it proceeding in that manner, and do not consider that the Tribunal’s procedure gave rise to any jurisdictional error. I therefore reject Grounds one and two in the last amended application.
Ground three contends that the Tribunal was in breach of its obligations under s.424A(1). Two matters are identified as being required to be put to the applicant for written comment. The first contention is that the Tribunal failed to “notify the applicant of the adverse information that it had in its possession”, being “the Delegate’s finding on the Congress I and the BJP in its decision making process”.
However, to the extent that this information did play a part in the Tribunal’s reasoning, this does not reveal a failure by the Tribunal to follow s.424A(1), because that general information was excluded by s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572).
The applicant’s written submission suggests that the Tribunal also failed to follow s.424A(1) by failing to warn the applicant that it would follow the delegate’s reasoning rather than its own. However, in fact, the Tribunal did make its own judgment on the matter. It was not obliged to foreshadow how it would decide the case to the applicant by way of a s.424A(1) notice.
Ground four of the further amended application contends breaches of procedural fairness by the Tribunal by reason of the failure to give the applicant an opportunity to reply to the information relied on by the delegate, a failure to make its own findings, and because it “displayed bias in that it did not present the applicant the totality of the evidence to make any comments on it to present crucial evidence to negate the Tribunal’s evidence”.
There is no substance in any of these contentions. The applicant was on full notice of the delegate’s reasoning, and had ample opportunity to present material in response. The Tribunal did not blindly adopt the delegate’s reasoning, but made its own findings. It was not obliged to warn the applicant that it might do that. There is no basis at all for suggesting bias.
Ground five of the further amended application claims the Tribunal did not address the claims that were before it, but in my opinion it plainly did so.
Ground six is:
The Tribunal also was procedurally wrong in basing its finding by inference. The Tribunal assumed that the applicant had read the delegate’s decision. If anything, the Tribunal’s decision should be based on factual accounts rather than on inference. Such a ruling goes against the very fabric of natural justice.
However, for the reasons I have given above, I do not accept that the Tribunal proceeded in any manner which was unfair, and I consider that it observed all the legal requirements of the Act.
A particular of this ground suggests that the Tribunal erred “in failing to give a proper notice to the applicant and in not reconvening a second hearing”. However, as I have indicated above, the Tribunal was not obliged to appoint a further hearing in circumstances where the pre‑conditions to s.426A(1) were satisfied. In a case such as the present to which s.422B applied, s.426A was a complete statement of the relevant requirements of procedure to the exclusion of rights of procedural fairness (see Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62, SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110, and Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64).
The applicant’s written submission filed recently is an eight page document making numerous contentions. I have sufficiently dealt with most of them above, but there are two additional arguments which I should refer to.
The first is a contention that there was a “constructive failure to exercise jurisdiction / failure to carry out the statutory function”, because the Tribunal misapprehended the claim made by the applicant. However, in my opinion, it did not misapprehend the claim made by the applicant. The point made by the Tribunal which is seized upon in this submission is misunderstood. The point made by the Tribunal was merely that the applicant had provided no details of his claims allowing them to be accepted.
There is a second contention that the Tribunal failed to consider “practicality and reasonableness of protection. The Tribunal failed to consider if there was effective state protection”. However, in my opinion, the Tribunal sufficiently addressed that element of the definition of refugee, by failing to be satisfied that the applicant had presented a history supporting a well‑founded fear of persecution.
The final contention in the written submission was that the Tribunal’s decision contained “unreasonableness and illogicality”. However, the Tribunal’s decision was far from unreasonable, and was not at all illogical.
I have considered the contents of all the documents filed by the applicant, and am unable to identify any jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 October 2006