SZJRR v Minister for Immigration

[2007] FMCA 600

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJRR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 600

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in India – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424C, 425, 426A

SZEZI v Minister for Immigration [2005] FCA 1195

First Applicant: SZJRR

Second Applicant: SZJRS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3346 of 2006

Judgment of: Driver FM

Hearing date: 19 April 2007

Delivered at: Sydney

Delivered on: 19 April 2007

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms A Mansour
Clayton Utz

ORDERS AMENDED UNDER THE SLIP RULE

1. The Court directs that the name of the first respondent be amended to the Minister for Immigration & Citizenship.

2. The application is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3346 of 2006

SZJRR

First Applicant

SZJRS
Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister not to grant to the applicant and his wife protection visas.  The applicants are from India.  The first applicant had made claims of political persecution.  Background to those claims and the Tribunal decision on them is set out in the Minister's outline of written submissions filed on 12 April 2007.  I adopt as background for the purposes of this judgment paragraphs 1 through to 11 of those written submissions:

   The applicants, who claim to be citizens of India, arrived in Australia on 7 March 2006.  On 4 April 2006 the applicants made an application for protection visas.  That application was refused by a delegate of the first respondent on 17 June 2006. 

   On 7 July 2006 the applicants applied to the Tribunal for review of the delegate's decision.  Only the first-named applicant made specific claims to be a refugee and will hereafter be referred to as the applicant unless otherwise indicated.

   On 24 July 2006 the Tribunal wrote to the applicant seeking comment on information that would, subject to any comments he made, be the reason, or part of the reason, for refusing to grant the visa ("section 424A letter").  On the same day, the Tribunal sent a letter to the applicant requesting additional information.  The Tribunal did not receive a reply to either letter.

   On 26 July 2006 the Tribunal wrote to the applicant and invited him to a hearing on 29 August 2006.  On 29 August 2006 the Tribunal received a fax from the applicant stating that due to his illness he was unable to attend the hearing on that day and attaching a medical certificate which stated that was unfit for work from 28 to 29 August 2006. 

   On 1 September 2006 the Tribunal wrote to the applicant stating that it had agreed to re-schedule his hearing to 18 September 2006.  The applicant was advised that if he did not attend the re-scheduled hearing, the Tribunal might decide his case in his absence without further notice. 

   On 14 September 2006 one of the Tribunal's officers contacted the applicant. The applicant arranged for his sister to speak for him. The applicant's sister confirmed that the applicant would attend the hearing. However, the applicant did not attend the re-scheduled hearing on 18 September 2006 and the Tribunal proceeded under s.426A of the Migration Act 1958 (Cth) (“the Migration Act”).

   On 11 October 2006 the Tribunal affirmed the decision under review. 

   The applicant's claims

   In a statement attached to the protection visa application, the applicant made the following claims:

   a)his father was actively involved in the Indian Congress Party.  He died during his work as a member, whereupon the applicant handled his business and joined the Indian Congress Party.  He was offered a position as a member of the City Council and became famous in the city for his public service;

   b)he was attacked by three or four people whilst riding his motor cycle.  Two weeks later the same attackers and three others attacked him, his wife and daughter.  All three of them were hospitalised.  He lodged a complaint with the police;

   c)he came to know that the people who attacked him were notorious criminals who were members of the opposition party, the BJP.  They had become jealous of the applicant's popularity because they coveted a Council seat in the next term;

   d)he was attacked for the third time, soon after which he decided to leave India;

   e)he has heard from his friend in India that the criminals who attacked him and his family are still searching for him around his home town. 

   The applicant did not make any further claims to the Tribunal.

   The Tribunal's decision

   The Tribunal was not satisfied that the applicant suffered persecution or that the applicant would face a real chance of persecution upon his return to India because there was nothing to support the applicant's claims other than the applicant's unsubstantiated assertions. 

   The Tribunal concluded that:

   Because he did not attend a hearing, the Tribunal has been unable to explore the detail of his claims, or their truthfulness.  Therefore, the Tribunal is unable to be satisfied that any of his claims are true.

2. The Tribunal decision was handed down on 24 October 2006.  These proceedings began with an application for an order to show cause filed on 15 November 2006.   The applicant asserted actual notification of the decision on 24 October 2006.  I find that the application was filed within time.  The applicant continues to rely on that application and a supplementary application filed on 19 February 2007. 

3. The applicant asserts a breach of procedural fairness in relation to the hearing before the Tribunal. He also asserts a breach of s.424A(1) of the Migration Act. The particulars of the latter claim are set out in the supplementary application. The applicant asserts that the Tribunal failed to provide him with the opportunity to comment upon adverse information relied upon by the Tribunal derived from his protection visa application.

4. There was, however, in this case, no breach of s.424A. First, the Tribunal wrote to the applicant on 24 July 2006 inviting him to comment on certain information which the Tribunal apparently considered material at that time and which, apparently, came from his protection visa application (court book, page 103). The applicant did not respond to that invitation to comment. As matters turned out, however, the information upon which the applicant was invited to comment was not relied upon by the Tribunal in its reasons. The applicant failed to attend a hearing before the Tribunal. In view of his failure to attend, the Tribunal was unable to explore with him questions of detail relating to his claims. The Tribunal said (court book, page 139):

   There is nothing to support these claims other than the applicant's unsubstantiated assertions.  There are insufficient particulars as to the detail of his career in politics, such as the city in which he had a council seat, when he was elected and for how long he held the seat, to enable the Tribunal to establish the relevant facts.  Because he did not attend the hearing, the Tribunal has been unable to explore the detail of his claims (as referred to above), or their truthfulness.  Therefore the Tribunal is unable to be satisfied that any of his claims are true.  The Tribunal is not satisfied that he was a member of the Indian Congress Party, that he held a position as a member of the city council, that he was beaten three times by members of the BJP and hospitalized, that people are searching for him, and the police have not helped him.

5. It is clear from that finding by the Tribunal that the decision turned upon an insufficiency of information advanced by the applicant. In those circumstances, the Tribunal is not under an obligation to invite comment pursuant to s.424A(1): see SZEZI v Minister for Immigration [2005] FCA 1195.  Neither was there any want of procedural fairness or natural justice in this case.  Because the applicant failed to respond to the invitation to comment and request to provide information sent to him on 24 July 2006 (court book, pages 103 to 105) the Tribunal was probably entitled to deprive the applicant of a hearing[1].  However, it did not do so.  The applicant was invited to a hearing by a letter dated 26 July 2006 (court book, page 106).  When he complained of illness the Tribunal arranged for an adjourned hearing.  A second hearing invitation was issued on 1 September 2006 (court book, page 117). 

   [1] Section 424C

6. I am satisfied on the basis of the affidavit of Andrea Maree Mansour, made on 19 April 2007, that both hearing invitations were despatched within three working days of the days they bore.  That may be academic in this case as the applicant actually received the hearing invitations.  He told me from the bar table that he attempted to attend the adjourned hearing before the Tribunal but was unable to attend because the car in which he was travelling broke down.  He conceded, however, that he did not inform the Tribunal of that difficulty.  The Tribunal was, therefore, not on notice of any difficulty that might require a further adjournment.  The Tribunal dealt with the circumstances that it was aware of in its decision referred to on page 138 of the court book:

   On 26 July 2006 the Tribunal wrote to the applicant at his mailing address 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 29 August 2006.  On 29 August 2006 the Tribunal received a fax from the applicant stating that due to his sickness he was unable to attend his hearing that day.  A medical certificate was also faxed, stating he was unfit for work from 28‑29 August 2006.

   On 1 September 2006 the Tribunal wrote to the applicant at his mailing address stating that it had agreed to reschedule his hearing for 18 September 2006.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  On 14 September 2006 one of the Tribunal’s officers rang the applicant and he put his sister on the phone.  The officer explained the importance of the hearing, and she translated this to him.  The applicant stated trough his sister that he would try to attend the hearing.  The officer explained the importance of his attendance and that if he did not attend the member may go ahead and make a decision.  The sister stated that the applicant would attend.  The Invitation to Hearing letter was not returned to the Tribunal.

   The applicant did not appear before the Tribunal on the day and at the time at which he was scheduled to appear.  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.

7. There was certainly no want of procedural fairness in the circumstances. The Tribunal also met its obligation under s.425 of the Migration Act to invite the applicants to a hearing. The Tribunal was entitled to proceed in their absence pursuant to s.426A of the Act. There is no substance to the grounds of review advanced by the applicants. Neither is any jurisdictional error apparent to me from my own reading of the court book.

8. I received the court book as evidence for the purposes of today's hearing together with the affidavits of Ms Mansour and the first applicant, the latter filed on 15 November 2006.  I note that there is an unfortunate typographical on page 137 of the court book, in the second paragraph, under the heading “Claims and Evidence”.  The Tribunal said: 

   As the second-named applicant did not make any specific claims of her own, but rather relies on her membership of the family unit, the Tribunal will hereinafter refer to the second-named applicant as ‘the applicant’. 

9. It is obvious, however, that all subsequent references to the applicant are, in fact, references to the first applicant.  I find that due to a clerical error the reference to the second named applicant then referred to as the applicant should have been the first named applicant. 

10. I find that the decision of the Tribunal is free from any jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order. 

11. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $4,000.  The applicant did not wish to be heard on costs.  I note that $5,000 would be payable pursuant to the Court scale of costs for a proceeding following a final hearing.  I accept that costs of not less than $4,000 have been properly and reasonably incurred on behalf of the Minister. 

12. I will order that the applicants pay the costs and disbursements of the first respondent of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 April 2007