SZIRD v Minister for Immigration

Case •

[2006] FMCA 1647

•

1 November 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIRD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1647
MIGRATION – Review of decision by Refugee Review Tribunal – whether the Refugee Review Tribunal was entitled to proceed with its review without taking any further steps to enable the applicant to appear before it – whether the Refugee Review Tribunal was obliged to consider relocation – whether the Refugee Review Tribunal was obliged to consider independent country information – whether the Refugee Review Tribunal breached its obligations under s.424A(1).
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36; 65; 424A(1); 425; 425A; 426A; 474; pt.8 div.2
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Applicant: SZIRD
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG1087 of 2006
Judgment of: Emmett FM
Hearing date: 1 November 2006
Date of last submission: 1 November 2006
Delivered at: Sydney
Delivered on: 1 November 2006

REPRESENTATION

Applicant appearing on his own behalf
Solicitors for the Respondent: Mr B. Wee, Phillips Fox Lawyers
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1087 of 2006

SZIRD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated


    24 February 2006 and handed down on16 March 2006.

  2. The applicant was born on 1 July 1979 and claims to be from India.  The applicant arrived in Australia on 13 July 2005 having legally departed from India on a passport issued in his own name on a business visa issued on 7 July 2005.

  3. On 16 August 2005, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then called.  In his protection visa application the applicant claimed to be worker and supporter of the Indian National Lok Dal Party (“the INLDP”).  The applicant claimed to do promotional work for that party and that, as a result of his involvement with the INDLP, he was persecuted by members of the opposing political party, being a Congress Party.

  4. The applicant alleged three particular incidents of persecution in his protection visa application: 

    i)

    In January/February 2005 when the applicant said there was an election in Guhla and that he had a role in looking after the voting process.  The applicant claimed that at about


    1 o'clock, when the voting process was going on, workers of the Congress Party attacked the voting booth and took control of the booth during which the applicant was injured.  The applicant stated that he went to the police station with other members of his party where he sat outside for four hours and was ultimately refused an opportunity to register his complaint.

    ii)In April 2005 the applicant was picked up by the police and charged with trespassing on farms. The applicant asserted that he was beaten and tortured by the police and released after nine hours when his relatives agreed to pay a bribe.

    iii)In June 2005 the police came to his house, that the applicant refused to give them any more money for bribes, as a result of which, he was taken to the police station and beaten. The applicant asserted that he was warned to arrange for more money or he would be killed. 

  5. The applicant stated he tried to contact members of his party but that nobody would help him, as a result of which he became a victim because of his political alliance with the INLDP.

  6. The applicant stated that the local member would not allow the applicant to speak in favour of the INLDP and that it became hard for him to walk openly in the city. The applicant said he was always scared and that police and other authorities were not able to help him.


    The applicant stated that he had a fear that the police and members of the Congress Party would kill him if he were to return to India.

  7. On 28 October 2005, a delegate of the first respondent refused the applicant’s visa for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

  8. On 1 December 2005, the applicant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”).  The applicant did not attend a hearing on 18 January 2006 nor did he contact the Tribunal to explain his non attendance.  The Tribunal proceeded with its review in the absence of the applicant and without taking any further steps to enable the applicant to appear before it and affirmed the decision of the delegate not to grant a protection visa.

  9. On 11 April 2006, the applicant filed an application in this Court in the following terms:

    “1. I have Genuine fear for my life in all over India and not only in the state of Haryana. The Refugee review Tribunal has failed to consider this fact

    2. Refugee Review Tribunal has failed to consider the human Rights abuses suffered by the out of power political party workers in the hands of government authorities and in the hands of political workers of the political party in power

    3. Refugee Review Tribunal has not supplied me any information which it considered in deciding my case”

  10. The applicant was unrepresented before the Court this morning although had the assistance of an interpreter.  The applicant had nothing to say in support of his application other than that his life was in danger and he would be killed if he returned to India and that the Tribunal did not give him the right decision and did not look at his case.

  11. Each of the applicant’s grounds was interpreted for him this morning and he was invited to make any submission in respect of any of the grounds. He chose not to.  I note also that the applicant did not have a copy of his application with him, however, one was provided to him by the first respondent.

  12. Ground 1 appears to be a claim that the Tribunal failed to consider the applicant’s fear of persecution beyond Haryana. 

  13. The Tribunal in proceeding with its review identified the applicant’s claims as stated in his protection visa application, as there was no further material provided to the Tribunal by the applicant. The Tribunal went on to identify concerns it had about inadequacies in the applicant’s assertions which it was not given an opportunity to explore with the applicant.

  14. The Tribunal stated that the applicant’s account of the work he did for the party was brief and lacking in detail and amounted to little more than reference to his activities in erecting party banners and statues of Mr Devi Lal, making speeches and monitoring the voting at an election booth on one day of elections.

  15. The Tribunal also noted that the applicant had not indicated whether he pursued any avenues of complaint of legal redress in relation to the harassment that he claimed to have experienced at the hands of the police.  The Tribunal also stated that the applicant had not addressed why the applicant’s claims in Haryana meant that he felt to leave India as a whole.

  16. The Tribunal was ultimately unable to be satisfied about the applicant’s assertions of his membership of the INLDP or whether he was attacked and beaten by members of the Congress Party, or extorted and beaten by police or whether any such conduct had occurred for a Convention reason.

  17. The Tribunal plainly considered the claims made by the applicant as contained in the protection visa application. There were no other claims made by the applicant in his Refugee Review Tribunal application. The Tribunal having identified its concerns and the inadequacies in the evidence before it was simply unable to be satisfied that the applicant met the criteria required for being a refugee pursuant to ss.36 and 65 of the Act. In those circumstances, the Tribunal must refuse the applicant a protection visa.

  18. It is plain from the Tribunal’s decision that it understood the applicant’s claims, it considered those claims in the context of the Convention and it gave reasons for being unable to be satisfied about the applicant’s claims.

  19. In circumstances where the applicant failed to attend a hearing and the Tribunal was unable to be satisfied that the applicant had a genuine subjective fear of persecution or had experienced the alleged harm, then the Tribunal was bound to affirm the decision of the delegate to refuse to grant the applicant a protection visa (NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 (“NAST”) at [5]).

  20. The Full Court, in NAST at [4], found that for the Tribunal to want an explanation about matters that it identified as causing it concern, and that it would have wished to satisfy itself at hearing, then in such circumstances, it is not in any way irrational, arbitrary or capricious for the Tribunal to conclude that it was not satisfied about those matters. 

  21. The conclusions of the Tribunal were open to it on the material before it and were arrived at after considering the applicant’s claims. Accordingly, to the extent that Ground 1 is a contention that the Tribunal failed to consider the applicant’s claim, it is rejected. 

  22. It is possible that Ground 1 may be a contention that the Tribunal was obliged to consider the “what if I am wrong test”, or whether or not it was possible for the applicant to relocate to other parts of India. However, where the Tribunal was simply not satisfied on the evidence and material before it because of the inadequacies of the evidence and the lack of any opportunity to explore its concerns arising out of the applicant’s assertions, there is no need for the Tribunal to consider those questions as it has not made any findings arising out of those assertions. 

  23. The ultimate reason for the Tribunal’s lack of satisfaction was the inadequacy in the applicant’s material and the lack of opportunity by the non appearance of the applicant to explore the applicant’s assertions further. (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ; SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J; SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16] per Hely J; SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] per Bennett J; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J).

  24. Accordingly, Ground 1 is rejected.

  25. Ground 2 appears to be a claim by the applicant that the Tribunal was obliged to have regard to independent country information in relation to the persecution generally of members of supporters of the INLDP.  However, where the Tribunal was not satisfied that the applicant was a member of the INLDP, or had suffered persecution as a result of that membership, it was not necessary for the Tribunal to have regard to independent country information about abuses that may occur resulting from such membership.

  26. The first respondent submitted that ground two may possibly be a claim that the Tribunal did not consider whether or not the applicant was a member of a particular social group that suffered persecution by the authorities as claimed or it was simply a failure by the Tribunal to make findings as claimed by the applicant that he was an out of power party worker.

  27. In any event, neither of these contentions is made out. The Tribunal plainly considered the claims made by the applicant that he was a worker of the INLDP and that he suffered persecution by reason of either his membership of a particular social group, being out of power party workers, or because of his membership per se. In either case, the Tribunal considered those claims and was not able to be satisfied, having regard to the inadequacy of the material before it.

  28. Accordingly, Ground 2 is not made out.

  29. Ground 3 appears to be an allegation that the Tribunal did not supply the applicant with information which it considered in deciding the applicant’s case. If that claim is intended to be a claim that the Tribunal used information in the protection visa application as part of the reason for affirming the decision under review and therefore in breach of its obligations pursuant to s.424A(1) of the Act, the authorities have made it clear that one must identify what that information is that is the reason for affirming the decision under review. Where it is the absence of information and the inadequacies in the applicant’s evidence that is the reason for affirming the decision under review those are the thought processes of the Tribunal and are not being caught by the obligations of s.424A(1) of the Act.

  30. Accordingly, Ground 3 is not made out.

  31. Whilst it was not part of the applicant’s claims that the Tribunal failed to comply with the statutory requirements of the Act in proceeding with its review in the absence of the applicant and without taking any further steps to enable the applicant to appear before it, I note that an invitation to attend a hearing was sent to the applicant on 9 December 2005 inviting him to attend a hearing on 18 January 2006.

  32. The letter informed the applicant 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 letter also informed the applicant that if he thought he may be unable to attend the hearing he should contact the Tribunal immediately and that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice.

  33. The letter also asked the applicant to send any other information or material that it had that it wished the Tribunal to consider and to complete a response to hearing invitation form indicating whether or not the applicant was attending a hearing.  No response was received by the Tribunal from the applicant to that letter although the applicant did confirm to me this morning that he did receive such a letter. 

  34. I note that the letter was sent to the applicant at the applicant’s identified address for service. The Tribunal, in deciding to proceed with its review without taking any further steps to allow the applicant to appear before it, noted that it had sent the applicant such a letter in accordance with the statutory regime and that there had been no contact from the applicant to the Tribunal seeking any postponement of the hearing. The Tribunal then purported to exercise its discretion, pursuant to s.426A of the Act, to proceed with its review. The Tribunal sent its invitation in accordance with the statutory requirements imposed by ss.425 and 425A of the Act. In the circumstances, there is no error in the Tribunal’s decision to proceed with its review.

  35. The decision is not affected by jurisdictional error and in those circumstances is a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the application is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  6 November 2006

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