SZJBC v Minister for Immigration

[2006] FMCA 1422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1422

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal properly exercised its discretion under s.426A of Migration Act 1958 (Cth) to proceed with its review in absence of applicant – whether Refugee Review Tribunal took into account all the applicant’s claims – whether the Refugee Review Tribunal failed to properly investigate claims.

Judiciary Act 1903 (Cth), s., s.39B
Migration Act 1958 (Cth), ss.65; .5(1); 65; 425; 426A; 474; pt.8 div.2

Applicant: SZJBC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1929 of 2006

Judgment of: Emmett FM

Hearing date: 12 September 2006

Date of last submission: 12 September 2006

Delivered at: Sydney

Delivered on: 12 September 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent:  Mr A. Markus, Australian Government Solicitor

ORDERS

That the application be dismissed.

That the applicant pay the first respondent's costs fixed in an amount of $4000.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1929 of 2006

SZJBC

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 (“the Tribunal”) dated 24 May 2006. 

2. The applicant was born on 21 July 1967 and claims to be from India and of Hindu faith.  The applicant has a wife and two sons who remain in India. and  Oon 21 November 2005 the applicant arrived in Australia, having legally departed from Mumbai on a passport issued in his own name and a 456 business visa issued on 28 October 2005. 

3. On 5 December 2005 the applicant lodged an application for a protection (class XA) visa with the Department.  In that application the applicant claimed that he feared persecution by the police and members of the Bharatiya Janata Party (“the BJP”) on the basis that he is an active member of the Congress Party, which is a political opponent of the BJP. 

4. The applicant claimed that he had been threatened by phone and threatened physically when he was in India because of his opposition to the BJP’s policies.  The applicant also claimed that the police would not protect him because they were controlled by the BJP.  The applicant expressed fear for himself and his family. 

5. On 28 February 2006, a delegate of the first respondent (“the Delegate”) refused the applicant’s application 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 (“the Convention”).

6. In its decision, the Delegate noted that the applicant had not provided evidence of persecution, other than that in his written claim that he had been threatened by phone and physically when he was in India and therefore felt he would be physically harmed, as would his family, to the extent that he and his family would be dead.

7. The Delegate noted that, although the applicant made that claim, he provided no further details, dates or descriptions of the claimed threats.  The Delegate also noted that the applicant had not provided any evidence that he had sought and failed to receive or had been refused state protection in his home of Rajasthan, being the location where he claimed the persecution and harassment allegedly occurred. 

8. The Delegate also noted that there was no evidence to indicate that the applicant had been forced to flee his home or evidence that his family had faced persecution or been forced to go into hiding.

9. The Delegate also noted there was no evidence that the applicant had been refused state or national protection or that he faced persecution from the state.  The Delegate noted that the there was no evidence that the applicant’s family had ever sought protection from the Indian authorities.

10. The Delegate noted that the applicant left India lawfully and that he had held a passport prior to his current travel documents and that he had lived at the same address for the last 15 years prior to his departure.

11. The Delegate also considered the applicant’s circumstances and on the evidence before it concluded that it was reasonable for the applicant, in his circumstances, to relocate within India if he did not wish to return to Sikar or in Rajasthan.

12. At the end of March 2006, the applicant lodged an application for review of that decision with the Refugee Review Tribunal.

13. ;However, the applicant did not provide any further material in the nature of claims or evidence in support of his application for review.

14. The applicant identified a post office box address as the address to which correspondence should be directed.  On 30 March 2006, the Tribunal wrote to the applicant at that address acknowledging the receipt by the Tribunal of his application and, inter alia, informing the applicant that the Tribunal expected him to immediately send any documents, information or other evidence he wished the Tribunal to consider.

15. On 27 April 2006, the Tribunal wrote to the applicant, again at his address identified for correspondence, informing him 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 went on in that letter to invite the applicant to appear before the Tribunal at a hearing on a date, time and place specified in the letter.  The applicant was required requested to complete a ‘Response to Hearing Invitation’ form to be returned to the Tribunal by 15 May 2006.  The letter also requested the applicant to send any new documents or written arguments that he wished the Tribunal to consider.  The letter also informed the applicant that the Tribunal would only change the hearing date for good reasons and if the applicant thought he may be unable to attend the hearing he must contact the Tribunal immediately.  The letter went on to say that if the applicant did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.

16. No response to the letter was received by the Tribunal.

17. I note that the date of the hearing scheduled by the Tribunal was four weeks from the date of the letter. 

18. The applicant did not appear at the hearing.

19. The Tribunal noted in its decision that it had written to the applicant on 27 April 2006 in the terms I have referred to above. The Tribunal noted its discretion pursuant to s.426A of the Act to and decided to decide to proceed with its review without taking any further steps to enable the applicant to appear before it. where it is satisfied that the applicant has been invited to appear at a hearing pursuant to The Tribunal had complied with s.425 of the Act. In the circumstances the decision to proceed was open to the Tribunal and there is no error by the Tribunal in its decision to proceed with its review without taking any further action to enable the applicant to appear before it.

20. The Tribunal considered the material before it and was satisfied that the applicant is an Indian national. 

21. The Tribunal noted that it was for the applicant to satisfy the Tribunal that all of the statutory elements required for refugee status were met by the applicant.

22. The Tribunal also noted that it was not required to make the applicant’s case for him, nor was it required to accept uncritically the allegations made by an applicant. 

23. The Tribunal was not satisfied that the applicant was an active member of the Congress Party nor that he had been threatened by the BJP. 

    
    

    The Tribunal particularly noted that it had a number of questions for the applicant about his role in the Congress Party and various other matters relating to his role in politics.

24. The Tribunal did not have an opportunity to explore those concerns with the applicant and was therefore not able to satisfy itself as to whether the applicant’s claimed level of political involvement was true.

25. The Tribunal noted that at the hearing it would have explored with the applicant details about threats the applicant claimed had been made by the members of the BJP, such as when the threats were made, who threatened him, and how he responded. 

26. On the evidence and information before the Tribunal, the Tribunal was not satisfied of the veracity of the claims.

27. Because the substance of the applicant’s claims resided in his claim of a fear of persecution because of his political opinion, because he was an active member of the Congress Party and had been threatened by members of the BJP, and the Tribunal had not accepted those claims, the Tribunal concluded that it was not satisfied that the applicant faces a real chance of persecution due to his political opinion.  

28. The Tribunal was therefore not satisfied on the evidence before it that the applicant has a well founded fear of persecution within the meaning of the convention Convention and the Tribunal thereby affirmed the decision of the Delegate not to grant the applicant a protection visa.

29. The applicant was informed of the Tribunal’s decision by letter dated 14 June 2006.

The proceeding before this Court

1. On 12 July 2006, the applicant filed an application in this Court. 
   The application stated that his application would be:

   “- - - substantiated in further submissions.”

2. No other document has been filed by or on behalf of the applicant in this proceeding.

3. The application otherwise identified two grounds of review.
   The grounds are in the following terms:

   “1. Refugee Review Tribunal did not take into account all of my circumstances including threats to my life.

   2. Grounds for my application will be substantiated in further submissions.”

4. The applicant was unrepresented before me this morning. However, despite being invited on several occasions to make oral submissions in respect of any aspect of his claim, he had nothing to say in support of his application.  I read to him the grounds he had identified in his application and explained to him the limited role of this Court in conducting judicial review of the Tribunal’s decision. 

5. I took the applicant through the history of his review application before the Tribunal in particular the requests made by the Tribunal for further information and material and that nothing further had been provided by the applicant.

1.On 12 July 2006 the applicant filed an application in this Court.  The application stated that his application would be:

"- - - substantiated in further submissions."

The application otherwise identified two grounds of review, Ground 1

1. the first ground being that the Refugee Review Tribunal did not take into account all of his circumstances, including threats to his life.  The second ground appears to be an allegation that the Tribunal did not properly investigate his claims. 

1.The applicant then attended a directions hearing on 10 August 2006 before me at which time the applicant was granted leave to file an amended application, giving complete particulars of each ground of review and was directed to file and serve any further evidence upon which he sought to rely and to file and serve written submissions in support of his application.  At that directions hearing, the matter was set down for hearing today before me.

1.There has been no other document received by the applicant or on his behalf by either the first respondent and nothing has been filed with the Court.

RECORDED  :  NOT TRANSCRIBED

1.The applicant confirmed in Court this morning that that in fact is the case. The applicant was unrepresented before me this morning, however chose on several occasions to make no oral submissions in respect of any aspect of his claim and otherwise had nothing to say in support of his application.  I read to him the grounds he had identified in his application and explained to him the limited role of this Court in conducting judicial review of the Tribunal's decision. 

1.I also took the applicant through the history of his review application before the Tribunal - in particular the requests made by the Tribunal for further information and material and that nothing further had been provided by the applicant.

1. In relation to the applicant’s first ground that the Tribunal did not take into account all of his circumstances, including threats to his life, it is incorrect to say that the applicant’s claims were not taken into account.  The Tribunal made findings with which the applicant did not agree and to the extent that this ground otherwise seeks merits review it is misconceived. 

2. In accordance with s.65 of the Act, it is for the applicant to satisfy the Tribunal, being the decision maker, that he meets the criteria required for a protection visa.  The decision of the Delegate drew to the applicant’s attention the lack of details in his claims.  The applicant sought review of the Delegate’s decision, but did not provide any further material. 

3. The Tribunal wrote on two occasions to the applicant inviting him to send further material and indeed, in its letter dated 27 April 2006, the Tribunal informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in his favour on that information alone.  The applicant continued to fail to provide any further material.  The applicant did not respond to the Tribunal’s invitation to attend a hearing and did not attend the hearing.

4. Accordingly, ground 1 is not made out.

Ground 2

1. In relation to the applicant’s second ground of review, that the Tribunal failed to properly investigate his claims, such a ground cannot be made out in view of the history of the applicant’s review by the Tribunal of the Delegate’s decision.  The applicant was repeatedly invited to provide material.  The applicant repeatedly ignored the Tribunal’s request for material.

2. tTo the extent that the Tribunal has a statutory obligation of a duty to investigate the applicant

   ’s claims, the Tribunal complied with the requirements of s.425 of the Act in inviting the applicant to appear at a hearing. It notified the applicant upon receipt of his application that it expected the applicant to immediately send documents, information and other evidence for consideration and it notified the applicant on

   
   27 April 2006 that it 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. 

3. The applicant was also on notice from the Delegate’s decision of the absence of material and information to satisfy the Delegate, that the applicant met the criteria for refugee status.  Despite those observations in the Delegate’s decision, the Applicant did not provide any further material in support of his application for review.

4. The Tribunal has taken all appropriate steps to seek to illicit elicit from the applicant any further information or detail in support of his claims, including putting him directly on notice that it was unable to make a decision in his favour on the information presently before it. 

5. The first respondent submits that for the applicant to assert that the Tribunal failed to investigate his claims in those circumstances, even giving the applicant the benefit of the doubt, is mischievous. 

6. There is no error by the Tribunal in the way in which it conducted its review, nor in its decision, let alone any jurisdictional error. In the circumstances, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the application is dismissed.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. I order that the applicant pay the first respondent’s costs fixed in an amount of $4000.00.

ORDERS DELIVERED

I certify that the preceding forty--two five (452) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  1224 September 2006

[FMCoA1]SYL –should this be ‘received by the first respondent from the applicant’?