SZHSS v Minister for Immigration - [2006] FMCA 593

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHSS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 593

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant failed to attend RRT hearing – RRT not satisfied on the material before it that the applicant qualified for a visa – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.424A, 425, 425A, 426A, 441A

Applicant S20/2002v Minister for Immigration (2003) 198 ALR 59
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Company v Valuer-General (1940) 40 DR (NSW) 126
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration v Jia (2001) 205 CLR 507
NABE v Minister for Immigration [2004] FCAFC 263
NADH of 2001 v Minister for Immigration 214 ALR 264
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SZEEU v Minister for Immigration [2006] FCAFC 2
VAF v Minister for Immigration (2004) 206 ALR 471
WAGP of 2002 v Minister for (2002) 124 FCR 276

Applicant:

SZHSS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3538 of 2005

Judgment of:

Driver FM

Hearing date:

24 April 2006

Delivered at:

Sydney

Delivered on:

24 April 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Mitchell

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3538 of 2005

SZHSS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Refugee Review Tribunal”). The decision of the RRT was handed down on 10 November 2005. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are set out in paragraphs 2 to 5 of written submissions prepared on behalf of the Minister and filed on 20 April 2006. I adopt those paragraphs as background for the purposes of this judgment:
The applicant:
a)claims to be a citizen of India;
b)entered Australia on 19 June 2005; and
c)lodged an application for protection visa on 15 July 2005: court book, page 62.
On 11 August 2005 a delegate of the Minister refused to grant the applicant the visa: court book, page 62.
On 10 November 2005 the RRT handed down its decision to affirm the decision not to grant the applicant a protection visa: court book, page 62.
Evidence before the RRT
The RRT had before it the department’s file including the protection visa application and the delegate’s decision record: court book, page 64.
The Applicant did not attend the RRT hearing despite advising the RRT that he wanted to attend the hearing: court book, page 64.
Applicant’s claims
The applicant claimed in his application for protection visa that:
a)he is a Muslim and a member of Shiv Sena;
b)he was targeted by Muslim extremists and the government because of his association with the group;
c)fundamentalist Muslims tried to kill him, but he survived and fled to Australia;
d)if he returns to India he will be killed by Muslim extremists, denied protection by the government and harmed by the police and authorities because of his involvement with Shiv Sena.
RRT decision
The RRT member concluded that:
a)The applicant did not provide any claims in his review application to satisfy the RRT that he had a well-founded fear of persecution.
b)The Applicant did not indicate the nature of his involvement with Shiv Sena.
c)The Applicant did not explain why he, as a Muslim, was associated with Shiv Sena.
d)The Applicant did not provide any meaningful details regarding the difficulties he claims to have had with Muslims, the government and the authorities.
e)It could not determine from the information provided if the applicant experienced the difficulties he described in India and whether those difficulties fall within the scope of the Convention.
f)The applicant did not provide further information despite ample opportunity to do so.
g)Many questions regarding his previous and future circumstances remained unanswered.
h)In the absence of further information, and in view of the above findings, the RRT is not satisfied by the evidence that the applicant had a well founded fear of persecution in India for a Convention reason.
The present proceedings began with a show cause application filed on 1 December 2005. An amended application was filed on 19 January 2006. That is the application upon which the applicant relies. It is defective inasmuch as it purports to be an application under the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, that is a matter of form and nothing turns on it. The original show cause application filed on 1 December 2005 was filed within time and in proper form.
I gave directions in relation to the matter on 23 January 2006. In particular, I dispensed with the requirement for a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), and listed the matter for a final hearing today. I gave the applicant the opportunity to file and serve further evidence and written submissions. Nothing further has been filed.
The applicant today asked for an adjournment on the basis that he was seeking additional evidence and money from his family in India. I refused that request by the applicant on the basis that the applicant had had three months to prepare for today's hearing, which I regarded as a sufficient opportunity. I also took the view, based upon what the applicant said from the bar table, that the evidence that he hoped to obtain was unlikely to assist him in this proceeding because it appeared to be directed to the question of whether he is a genuine refugee.
The evidence I have before me comprises the book of relevant documents filed on 21 February 2006 and an affidavit by the applicant filed on 19 January 2006. I accepted paragraphs 1 to 9 of the affidavit as evidence. The balance I received as submissions.
In his oral submissions the applicant pressed upon me the view that he was not given a fair opportunity to present his case to the RRT. The applicant told me, in effect, that he misunderstood the significance of the hearing invitation he received. The applicant apparently believed that even if he chose not to attend the hearing, he would have received some further opportunity to present his claims to the RRT. The applicant's evidence in support of his application in this regard does not sit well with the evidence in the book of relevant documents. The hearing invitation sent to him on 13 September 2005 to the address nominated by him in his review application was received by him. The hearing invitation appears on pages 52 and 53 of the court book. The invitation is in standard form. The applicant should have been left in no doubt of the significance of the hearing to which he was being invited. It appears that initially, the applicant was going to attend that hearing. His response to the hearing invitation appears on pages 54 and 55 of the court book. Not only did the applicant express an intention to attend the hearing, but he also said that he wished to bring a named witness with him.
The applicant's affidavit does not enlighten me as to why he did not attend. Neither does it enlighten me as to whether the applicant's witness attended or not. I infer from the court book that he did not. The RRT decision on page 64 of the court book sets out the relevant circumstances. It appears that no one appeared in relation to the applicant's case, and in the circumstances the RRT elected to proceed in the absence of the applicant pursuant to s.426A of the Migration Act1958 (Cth) (“the Migration Act”). The RRT was entitled but not required to proceed in the applicant's absence. The applicant had been properly invited to a hearing and had responded to that invitation. No adjournment was called for, unless there was something known to the RRT that necessitated an adjournment. There is no evidence that the RRT was put on notice of any problem.
I reject the first two grounds in the amended application, that the applicant was denied an opportunity to fully present his case; and that the RRT did not state that the hearing scheduled for 20 October 2005 was a crucial aspect of determining the applicant's case. The RRT complied with its statutory obligations. The process followed by the RRT was fair. The opportunity given to the applicant was an adequate one for him to present his claims, and the RRT had made as clear as could be expected the importance of the hearing invitation.
I note that, in his amended application, the applicant asserts that the RRT could have telephoned him on the telephone number nominated by him. However, I see no evidence that the applicant in fact provided any telephone contact number. His review application on page 46 of the court book has the spaces for telephone, mobile and fax contact numbers struck through. The review application on the same page also stated that the applicant required an Urdu interpreter, although he later indicated he required a Hindi interpreter, as indeed he had today. The applicant explained this on the basis that Urdu and Hindi are very similar languages.
I see no jurisdictional error in the process followed by the RRT leading up to its decision.
The amended application also asserts a breach of s.424A of the Migration Act. I disagree. The applicant asserts an obligation on the part of the RRT to disclose country information relied upon. There is no such obligation. Even if there were, in my view, the case did not turn on country information. It is apparent from the terms of the RRT decision that the presiding member was surprised and perhaps suspicious about the applicant's claim. The applicant had claimed to fear harm as a result of his membership of the Shiv Sena organisation in India. That was a surprising claim because of the reputation of the Shiv Sena as being an extremist anti-Muslim organisation. The applicant is a Muslim. That information, however, in my view, merely provided the template upon which the presiding member would have explored the applicant's claims with him if given the opportunity. Because the applicant did not attend, the presiding member did not have that opportunity.
This is a simple case of the RRT being unable, on the material before it, to attain the degree of satisfaction required for the grant of a protection visa. There was no breach of s.424A.
The amended application also asserts bias, but there is no evidence of it. I reject that claim. I also reject the assertions in the amended application that the RRT failed to consider the applicant's claim and that the RRT was procedurally wrong in basing its findings on inferences. It is plain, on the face of the material and the book of relevant documents, that the applicant's claims were considered. It does not appear to me that the decision of the RRT depended upon any inferences. Even if it did, the RRT is entitled to draw inferences from the available evidence. I otherwise agree with the Minister's written legal submissions in paragraph 6:
The applicant’s claims recorded in the applicant’s amended application for judicial review filed on 19 January 2006 may be summarised as follows:
a)The applicant was denied an opportunity to fully present his case for review.
b)The RRT did not state that the hearing scheduled for 20 October 2005 was a crucial aspect of determining the applicant’s case.
c)The RRT breached s 424A(1) of the Migration Act and did not accord the applicant procedural fairness.
d)The RRT was biased and procedurally incorrect in the manner in which it used ‘information from other sources’.
e)The RRT did not consider a claim made by the applicant and thereby did not consider a relevant consideration.
f)The RRT was procedurally wrong in basing its findings on inference.
The first respondent submits in respect to these claims:
a)In respect to the claim summarised in paragraph 6.1(a) above, the applicant was sent an invitation to the hearing on 13 September 2005 in compliance with ss.425, 425A, 441A and the applicant accepted that invitation in writing: court book, pages 53-4. In these circumstances the applicant has been given an opportunity to appear and present his case to the RRT.
b)In respect to the claim summarised in paragraph 6.1(b), this ground does not reveal any error on the part of the RRT in circumstances where it complied with its obligations under the Migration Act in respect to inviting the applicant to the hearing.
c)In respect to the claim summarised in paragraph 6.1(c), the RRT decision was based on the RRT member’s appraisal of the applicant’s claims as being poorly presented, unexplained, lacking in meaningful details and the fact that the RRT had a number of questions about the claims that remained unanswered in the material provided. Those appraisals were not information: VAF v Minister for Immigration (2004) 206 ALR 471 at [24]; WAGP of 2002 v Minister for (2002) 124 FCR 276 at [26] – [29]; SZEEU v Minister for Immigration [2006] FCAFC 2 at [207].
d)In respect to the claim summarised in paragraph 6.1(d) there is no evidence on the face of the reasons:
i)that the RRT member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper evaluation of the relevant materials before him which were relevant to the decision to be made (see Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]); or
ii)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; NADH of 2001 v Minister for Immigration 214 ALR 264 at [115]; Applicant S20/2002 (2003) 198 ALR 59 at [52], [75], [99]-[101] and [136].
e)In respect to the claim summarised in paragraph 6.1(e), the applicant did not make any claims in his application for review to the RRT. In respect to the claims in the applicant’s application for protection visa the RRT summarised those claims (see at court book, page 65) and then made findings that the claims were poorly presented, unexplained, lacking in meaningful details and the RRT had a number of questions about the claims that remained unanswered in the material provided. In those circumstances there is no evidence that the applicant’s claims were not considered or that there were claims, not articulated, but which arose from the material before the RRT that were not considered by the RRT: NABE v Minister for Immigration [2004] FCAFC 263 at [55] – [63].
f)In respect to the claim summarised in paragraph 6.1(f), there is no evidence that [any] inferences drawn by the RRT were not open to it on the evidence before it: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 355-7; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 137-8. That being the case there is no error of law, let alone jurisdictional error, based on [any] inferences drawn by the RRT.
I find that the decision of the RRT is free from jurisdictional error. The decision is therefore a privative clause decision. The application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in the sum of $5,000. The applicant sought a lesser order. The Federal Magistrates Court Rules prescribe an amount of $5,000 after a final hearing in a migration case. I am satisfied that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister when considered on a party and party basis. As the question of the quantum of the costs order is contested between the parties, I will fix costs in a specific amount.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 3 May 2006