SZKGD v Minister for Immigration
[2007] FMCA 1610
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1610 |
| MIGRATION – Invitation to attend hearing – failure to attend – dismissal inevitable consequence – proceeding to decision under s.426A not a denial of natural justice. |
| Migration Act1958 (Cth), ss.422B, 441A, 425, 425A, 426A, 474 Migration Regulations 1994 (Cth), reg.4.35D |
| SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 |
| Applicant: | SZKGD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 603 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 17 September 2007 |
| Date of last submission: | 17 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J. Singh of Jack Singh & Associates |
| Solicitors for the Respondents: | Ms M. Palmer of Sparke Helmore |
ORDERS
The application, amended application, and statement of particulars are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 603 of 2007
| SZKGD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 January 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application and a statement of particulars on 25 May 2007.
Background
On 19 October 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed a fear of persecution based on his Sikh religion.
This application was refused by a delegate of the first respondent on 15 November 2006 (CB 29) and by the Tribunal on review on 15 January 2007 (CB 56). The matter is now before this Court pursuant to an application for judicial review filed on 21 February 2007.
Issues for determination
The issues before the Court are as follows:
·The consequence of an applicant failing to attend the hearing after being invited;
·Whether proceeding to decision after a failure to attend is a denial of natural justice.
The application
In his application, the applicant set out the following grounds and particulars (letters/numbering added):
(1)The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
The applicant submit, in particular, that the Tribunal did not act according to substantial justice and the merits of the case in:
(a)Its treatment of the claims that tribunal member did not consider the facts of the case that the applicant’s spouse has withdrawn her support and reported to the DIMA. As the applicant is highly religious person and the Indian Police is chasing up the active members of the Sikh Student Federation.
(b)Its treatment of claim that the honourable member of the Tribunal did not consider the facts of the Applicant in regard to the facts that the Applicant was physically assaulted and beaten by the Indian Police and Punjab Police. The applicant could [sic] appear before the tribunal as the applicant was no feeling well before the hearing. The applicant’s name is on the Police records and the Applicant was really scared. Therefore the applicants have a well founded fear in India, which the Tribunal did not consider in connection with making of decision.
(c)Its treatment of applicant’s claim that there are anti-Sikh extremists in India and the Authorities has asked the Police to arrest the Sikh Student Federation members.
(d)Its treatment of applicant’s claim that the Applicant was threatened and tortured by the Punjab police and applicant’s house was raided too many times in India.
(e)It’s Treatment of claim that the Tribunal member did not follow the rules of natural justice and the merits of the case. Natural Justice was not adopted and applied for by the Tribunal and all the real facts of the case were ignored.
(f)Its treatment of the claim that Tribunal did not adopt the proper legal procedure or follows the Guideline and rules while deciding the case.
(g)Its treatment of the applicant’s claim that there was no evidence or other material to justify the Tribunal’s decision. The Tribunal member considered the case laws and the material which is not relevant to this matter.
(h)Its treatment of the applicant’s claim that the decision was an improper exercise of the powers conferred by the Act and the regulation.
(i)Its treatment of the applicant’s claim that The Honourable member of the Tribunal took the narrow meaning of the Refugee Convention instead of broad meaning.
(j)Its treatment of the applicant’s claim that the decision involves an error of law being incorrect interpretation of the applicable law or an incorrect application of the law to the facts founded by the Tribunal.
(2)The Tribunal did not have jurisdiction to make the decision.
The amended application
The applicant’s amended application set out the following grounds and particulars (letters /numbering added):
(1)The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
The applicant submits, in particular, that the Tribunal did not act according to substantial justice and the merits of the case in:
(a)Its treatment of the claims that the Honourable Tribunal member did not consider the statement submitted before the department of the Immigration and Citizenship.
(b)Its treatment of the Applicant is a devoted Sikh and can not go back to India due to the fear of persecution by the Indian Government and Indian Authorities.
(c)Its treatment of the Applicant’s claim that the Applicant can not finish his studies due to the Anti-Akali Dal feelings and the Indian Police is after him.
(d)Its treatment of claim that the Applicant is an active member of the Sikh Student Federation and took interest in the Sikh Students Federation activities.
(e)Its treatment of claim that in April 2004, a Shiromani Khalsa Dal Party came into effect and its main aim was to get Khalistan state from the Indian Government. The Sikh Students Federation decided to participate in the Holy war of Khalistan. This Shiromani Khalsa Dal is not recognised by the Indian Government and Indian Government was chasing the members of the Sikh Students Federation.
(f)Its treatment of claim that Indian Police started to arrest the leaders of the Sikh Students Federation and the applicant was also targeted.
(g)Its treatment of claim that the Applicant’s parents were really concerned for applicant’s safety and tried to sent the applicant overseas and the applicant was married with a student, who was studying in Australia. The Applicant’s wife left the applicant after she came to know the applicant is an active member of Student Federation.
(h)Its treatment of claim that the applicant’s is still in the Police records and the Applicant’s father notified the Applicant to not go back to India until the Applicant’s name is removed from the Police records.
(i)Its treatment of claim that the Applicant’s fear of persecution is well founded fear and there is a real chance that the Applicant will be subject to the Indian Police harassment and therefore meets the requirements of Refugee Convention.
(j)Its treatment of claim that the Honourable member of the Tribunal did not follow the rules of natural justice and the merits of the case. The natural justice was not adopted and applied for by the Honourable member of RRT and all the relevant facts of the case were ignored.
(k)Its treatment of claim that the Honourable member of the Tribunal did not adopt the proper legal procedure or did not follow the Guidelines and rules while deciding the case.
(l)Its treatment of claim that there was no evidence or other material to justify the Tribunal’s decision. The Honourable member of the tribunal considered the case laws and material which was not relevant to this matter.
(m)Its treatment of the Applicant’s claim that the decision was an improper exercise of the powers conferred by the Migration Act and regulation.
(n)Its treatment of claim that the Honourable member of the Tribunal took the narrow meaning of the Refugee Convention instead of broad meaning.
(o)Its treatment of Applicant’s claim that the decision involves an error of law being incorrect interpretation of the applicable law or an incorrect application of the law to the facts of as founded by the Tribunal.
(2)The decision was an improper exercise of the power conferred by the Act or the Regulations.
The statement of particulars filed by the applicant’s solicitor on 25 May 2007 set out the following grounds and particulars (Mr Singh also described them as “submissions in support of the application”):
(1)The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
Particulars
The Applicant submits, in particular, that the Tribunal failed properly or at all to set out its reasons for the decision, its findings on material questions of fact, and the evidence upon which those findings were based in relation to the following:
(i)its treatment of the claims that the applicant is an active and ma important member of Sikh Students Federation in India and Congress Party in power trying to finish off the Sikh Students Federation Party leaders and members by lodging false cases and trying to kill the party leaders and applicant.
(ii)its treatment of the claim that the applicant was failed to continue his studies due to the persecution by the Indian Police authorities.
(iii)its treatment of the applicant’s claim that applicant was in real fear in India and cannot go back due to this fear.
(iv)its treatment of the claim that due to the computer technology his name has been forwarded to all the Police Headquarters.
(v)its rejection of a statement provided by the applicant that the applicant used to be an active member of the Sikh Student Federation, who is fighting for the cause of separate Khalistan homeland.
(2)The Tribunal did not have jurisdiction to make the decision.
Particulars
Insofar as the Tribunal was in breach of the Act in relation to the decision including any failure to follow procedures required by the Act and any error in interpreting or applying the law, the Tribunal thereby acted without or in excess of jurisdiction in relation to the decision.
(3)The decision was not authorised by the Act or Regulations made under the Act.
Particulars
Insofar as the Tribunal was in breach of the Act including any failure to follow procedures required by the act and any error in interpreting or applying the law relating to the decision, the Tribunal was not authorised to make the decision.
(4)The decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.
Particulars
(i)the Tribunal erred in failing consider on their merits the evidence of matters from the applicant but rejected the applicant’s claim and consequently determined that those evidence were of no weight in relation to the following matters:
(a) its treatment of the claims that the applicant was an active member of the Sikh Student Federation and took part in its activities and therefore his life is in real danger.
(ii)The Tribunal erred in law in interpreting or applying its obligations pursuant to s.430 of the Act especially concerning those set out in the particulars to Grounds of the Application.
(iii)The Tribunal applied the wrong test in effectively requiring more than a real chance of persecution of the applicant before being satisfied that he had a well founded fear of persecution.
(iv)The Tribunal erred in law by incorrectly applying the “real chance” test for well founded fear of persecution to the facts as properly found by the Tribunal.
(5)There was no evidence or other material to justify the making of the decision.
Particulars
The Tribunal based its decision to a significant extent of the following conclusions reached by it without proper evidence or justification:
(i)that the applicant was not a member of the SFF and the SKD;
(ii)that the Tribunal is not satisfied that the applicant has a well founded fear of persecution of any Convention reason;
(iii)Assertion by the applicant that the application received any threats from the police or the police continue to harass him.
Findings of the Court as to the grounds in the application
The applicant was invited to attend the hearing on 15 January 2007 in accordance with s.425 of the Act (CB 45), but did not attend the hearing (CB 50). In his affidavit filed on 21 February 2007, the applicant stated that he did not attend the interview because he was not feeling well on that day. That affidavit was filed after the Tribunal had signed its decision. An application for adjournment was not made at any stage even though the s.425 letter notified the applicant that if he was unable to attend the hearing that he must notify the Tribunal immediately.
The s.425 invitation to attend:
·Informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.425;
·Provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear: s.425A(1);
·Was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(i);
·Provided a period of notice to the applicant that complied with the prescribed period of 14 days: reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
·Contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.
Accordingly, the invitation complied with the statutory requirements contained in reg.4.35D and sections 425, 425A, 426(1) and 441A(4) of the Act. No breach of those provisions occurred.
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328 per Downes J at [5].
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ (ante) per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
When the applicant did not attend the scheduled hearing, the Tribunal was entitled to proceed in accordance with s.426A of the Act. An applicant must establish their claims to the satisfaction of the Tribunal; the applicant’s claims were not established to the satisfaction of the Tribunal and it was not obliged to accept them.
Ground 1 seeks a review of the merits of the decision. The Court accepts the submission for the first respondent that much of the material seeks to cavil with the merits of the case and as such is:
beyond the scope of the Court in its function of judicial review. This Court cannot engage in merits review and it is no part of its task to do so. Nor is it the task of the Court to conduct a rehearing of the merits. This has been explained on numerous occasions, in particular by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 at [10] – [11] and NARE v Minsiter for Immigration [2004] FCA 554 at [10].
Ground 1 asserts a failure to observe procedures in the Migration Act and that the Tribunal did not act according to substantial justice and the merits of the case. This general claim is rejected; the Tribunal observed the procedures in the Act in inviting the applicant to a hearing, and then in proceeding to make a decision without taking any furhter action to allow or enable the applicant to appear before it (s.426A). It also acted according to the merits of the case. The applicant’s claims were not established to the Tribunal’s satisfaction.
Ground 1(a) alleges that the Tribunal failed to consider the fact that the applicant’s wife had withdrawn her support. That fact is not relevant as to whether the decision then under review should have been affirmed by the Tribunal.
Ground 1(b), (c) and (d) seek a review of the merits which is not available: SZDFO (ante).
Ground 1(e) alleges a failure to accord natural justice. The effect of s.422B of the Act is that Division 4 of Part 7 of the Act is an exhaustive code of the natural justice hearing rule applicable to this matter. No breach of that Part has been established. This ground is rejected.
Ground 1(f) alleges that the Tribunal did not adopt the proper legal procedure. No error of law has been established. This claim is rejected.
Ground 1(g) alleges that the Tribunal considered irrelevant case law and material. Nothing has been put to establish this claim. It is rejected.
Ground 1(h) alleges an improper exercise of power. This claim has not been established; it is rejected.
Ground 1(i) alleges that the Tribunal took a narrow meaning of the Refugee Convention. The Tribunal set out the definition of “Refugee” at CB 57-59. The Court finds no error of law in those passages, or in the way the Tribunal applied it.
Ground 1(j) alleges an incorrect interpretation of the law. This has not been established; it is rejected.
Ground 2 alleges that the Tribunal did not have jurisdiction to make the decision. This has not been established. The Tribunal acted within jurisdiction. This ground is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground 1 is the same as ground one in the application and is rejected for the reasons set out thereunder.
Ground 1(a) alleges that the Tribunal did not consider a statement submitted to the Department. Nothing has been put to support that ground; it has not been established. That ground is rejected.
Grounds 1(b)–(i) seek a review of the merits. Such a review is not available.
Ground 1(c) complains about the Tribunal’s treatment of the applicant’s claimed reasons for not being able to finish his studies. The Tribunal noted that claim at CB 59.6. The s.425 letter to the applicant (CB 45) stated that the Tribunal was unable to make a decision in favour of the applicant on the material he had provided. The applicant did not provide any additional material (CB 60.7). The Tribunal found the applicant’s claims “to be extremely vague, general and lacking in detail” (CB 61.8). The Tribunal did not accept that the applicant came to the attention of the Indian Police (CB 61.10), which includes a rejection of ground 1(c). It was unnecessary to make a finding on this particular claim because it was subsumed in a finding of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]. This ground is rejected.
Ground 1(d) complains about the treatment of the applicant’s claims to be an active member of the Sikh Student Federation. The Tribunal found that the applicant was not of any interest to the authorities because of his political activities (CB 61.10). That finding of fact was properly open to the Tribunal.
Ground 1(e) is dealt with by the finding at CB 61.10. That finding was properly open to the Tribunal on the material before it.
Ground 1(f) is dealt with by the finding at CB 61.10.
Ground 1(g) is dealt with by the finding at CB 61.10.
Ground 1(h) is dealt with by the findings at CB 61.10 – 62.1.
Ground 1(i) is that the applicant has a well-founded fear of persecution. The Tribunal found that there is no real chance that the applicant will suffer persecution if he returns to India (CB 62.3)
Ground 1(j) alleges that the Tribunal denied natural justice by ignoring the facts and deciding incorrectly on the merits. The reason the Tribunal affirmed the decision under review was the failure of the applicant to establish his claims. The applicant was invited to attend a hearing to present evidence and argument but declined to do so. Section 422B means that Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule that was applicable to the matter. No breach of those provisions has been established. This ground is rejected.
Ground 1(k) alleges a failure to adopt the proper legal procedure. The Court finds that the legal procedure followed by the Tribunal was in accordance with the Act. No breach occurred. That ground is rejected.
Ground 1(l) alleges that the Tribunal considered irrelevant case law and material. This ground is rejected for the same reasons that it was rejected in Ground 1(g) of the application.
Ground 1(m) alleges an improper exercise of power. This claim was ground 1(h) in the application and is rejected for the same reasons set out thereunder.
Ground 1(n) alleges that the Tribunal adopted a narrow meaning of the Refugee Convention. This claim is the same as ground 1(i) of the application and is rejected for the same reasons set out thereunder.
Ground 1(o) is the same as ground 1(j) in the application and is rejected for the reasons set out thereunder.
Findings of the Court as to the grounds in the statement of particulars
Ground one alleges that the Tribunal did not observe procedures that are required by the Migration Act. This claim has been rejected above.
Ground one alleges also that the tribunal failed to set out its reason for decision, its findings on material facts and the evidence on which those findings were based. The Tribunal affirmed the decision under review because the applicant failed to establish his case or claims to the satisfaction of the Tribunal. The Tribunal set out its findings and reasons on those matters at CB 61-62.
Particulars (i)–(v) complain about the Tribunal failing to accept evidence on certain matters. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. No error has been shown.
Grounds two and three allege that the decision was not authorised by the Act or Regulations. The Tribunal was authorised to proceed to make a decision under s.426A. These grounds are rejected.
Ground four alleges an incorrect interpretation of the law. Particular (i) complains about the Tribunal rejecting the applicant’s claims, and the weight given to the applicant’s claims that he was an active member of the Sikh Student Federation and took part in its activities and therefore his life is in danger. The Tribunal can accept or reject evidence and give weight as it finds appropriate in the circumstances: Lee (ante).
As stated by the Federal Court of Australia in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal's decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234).
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41]. Also, as stated by the Federal Court of Australia in Lee (ante):
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Particular (ii) alleges a breach of s.430 of the Act, being the obligation on the Tribunal to set out its reasons, findings and the evidence on which its findings of fact were made. The Tribunal set out its reasons and findings, being that the applicant had failed to establish his case. No error occurred.
Particulars (iii) and (iv) allege that the Tribunal required more than a real chance of persecution. That has not been established. The Tribunal found that there is “no real chance” that the applicant will suffer persecution if he returns to India (CB 62.3). That was a conclusion of fact properly open to the Tribunal. No error occurred.
Ground five alleges that there was no evidence or material to justify the making of the decision. The Tribunal made its decision because the applicant failed to establish his case. This lack of evidence justified the Tribunal affirming the decision under review.
The Court accepts the following submissions in another matter:
The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended application, and the statement of particulars are dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 26 September 2007
9
2