SZKHU v Minister for Immigration
[2007] FMCA 1877
•30 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1877 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss. 91(R), 424A, 426A, 430, 439, 440 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 Re Refugee Tribunal and Another; Ex parte H and Another (2001) 75 ALJR 982 SZKHU v Minister for Immigration and Citizenship [2007] FCA 1149 |
| Applicant: | SZKHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 762 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 30 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Morgan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 762 of 2007
| SZKHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 4 March 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The background to these proceedings is that the applicant, who is a citizen of India, arrived in Australia in May 2000. In May 2001 he lodged an application for a protection visa. The application was refused. The applicant sought review by the Tribunal and the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant sought judicial review of the Tribunal decision by application filed in this Court on 6 March 2007. On 4 April 2007 Driver FM dismissed the application on the basis that it was out of time. Lindgren J allowed the appeal (see SZKHU v Minister for Immigration and Citizenship [2007] FCA 1149) as a result of the intervening decision in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565. The matter was remitted to the Federal Magistrates Court for redetermination. The matter came before me as the duty federal magistrate at that time. It was listed for hearing today.
Consistent with the remarks of Lindgren J at [4], the applicant was given the opportunity to file written submissions in support of his application for judicial review of the Tribunal decision. He did so.
In fact the submissions raise fresh grounds of review which were addressed by the first respondent in oral submissions and which I have considered. The first respondent also filed written submissions.
The applicant's claims were contained in a statutory declaration provided in connection with his protection visa application. He claimed in essence to fear persecution on the basis of his political activity in India and that he had come into conflict with members of the BJP political party. He also made claims on the basis that his father held an influential socio-economic and business position in the community. In particular he claimed that the BJP had demanded a large donation from his father in 1993 and that there had been various threats of violence to himself and to his family, including death threats.
The application was refused and he sought review by the Tribunal. The application for review stated that a submission would be provided as soon as possible, but the Tribunal recorded that no further supporting documents or submissions were received. In the application for review the applicant provided a home address in Mascot and a post office box address for service. He also nominated an advisor who he authorised to act for him in relation to the application. The application form stated that the Tribunal would send copies of all correspondence to the advisor.
Relevantly, the Tribunal wrote to the applicant by letter (which is marked with a registered post number) addressed to his address for service as notified in the review application on 3 July 2002. A copy of that letter is marked as having been sent by registered post to his migration agent advisor and also to the applicant’s then nominated home address. That letter advised the applicant that the Tribunal had looked at the information relating to his application but was unable to make a decision in his favour on this information alone. It invited the applicant to attend a Tribunal hearing on 20 August 2002 and indicated that if he did not attend the hearing, and the Tribunal did not postpone it, it could make a decision on the case without further notice.
On 8 July 2002 the Tribunal sent a further letter addressed to the applicant’s address for service with copies addressed to the adviser and home address, advising that due to circumstances beyond its control it would not be able to have a hearing on 20 August 2002. It advised that the new hearing date would be on 23 August 2002 at a time and place specified. The consequences of non-attendance were repeated.
On 11 July 2002 the Tribunal received a response to hearing invitation in which the applicant indicated that he wished to attend the Tribunal hearing. That form contained a different residential address but the same postal address and the same advisor, and address for the advisor. The court book contains copies of letters and return to sender notations on envelopes which, it appears, relate to the copies of the letters of 3 July 2002 and 8 July 2002 which were sent to the applicant's original home address (prior to the notification on 11 July 2002 of the change in that address).
Subsequently, on 14 August 2002 the Tribunal wrote to the applicant at the address for service with copies sent to his advisor and to the new residential address (by registered post according to the notations on the copy letters before the Court) indicating that due to circumstances beyond its control there could not be a hearing on 23 August 2002 and that the Tribunal would write as soon as it had a new date for the hearing.
On 3 September 2002 the Tribunal wrote again to the applicant at the address for service in the review application (with notations that copies were sent to the advisor and the new residential address) advising that the new hearing date would be 13 September 2002 at the time and place specified and reiterating the consequences of non-attendance. Again, a copy of this letter was returned to sender and from the notations that appear on the copy letters it appears that the letter returned to sender was the registered post letter sent to the applicant's new home address.
In its reason for decision the Tribunal recorded that it had written to the applicant and invited him to attend a hearing, advising that if he did not attend, and a postponement was not granted, it may make a decision on his case without further notice. The Tribunal stated that no response was received. In context it appears that this may be an indication of no response being received to the postponement notification, as the applicant did, in fact, reply to the original invitation to the hearing.
In any event the Tribunal recorded that the applicant did not appear before the Tribunal on the day, time and place at which he was scheduled to appear and that it had contacted the applicant's advisor who was unable to make contact with the applicant and that it rang the telephone number provided by the applicant, but that it had been disconnected.
The Tribunal also stated that it wrote again to the applicant but that the letter was returned unclaimed. There is no explanation for any such letter (unless this is a reference to the letter of 3 September 2002). I am told from the bar table that there is no evidence of any other such Tribunal letter or evidence of another letter having been returned unclaimed after 13 September 2002, the time to which the hearing was rescheduled.
The Tribunal determined in those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal summarised the applicant's claims. It described concerns it had with the applicant's claims, in particular that while he claimed to fear harm for political reasons and that members of the governing BJP party had threatened to harm him and family members, he had been able to leave India legally using a passport in his own name without coming to the attention of the authorities. Further, while it was claimed that his father had an influential position in the community and had been threatened after the BJP had demanded a large sum of money which he refused to pay, that had occurred some 10 years ago and there was no evidence that the applicant’s father suffered any serious harm for this refusal. In that context the Tribunal stated:
In fact there is no evidence at all in support of the applicant's claims and I have not had the opportunity to explore a number of important issues with him.
The Tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugee's Convention.
In the application for review, filed on 6 March 2007, the applicant raised three grounds. These grounds were not particularised. First, it was contended that the tribunal breached the rules of natural justice in connection with the making of the decision and made an error of law when it failed to comply with s.424A of the Migration Act 1958 (Cth).
In this case the applicant failed to attend the Tribunal hearing. There is nothing in the material before the Court to indicate that the Tribunal failed to comply with its obligations under the Migration Act to notify the applicant and invite him to attend a Tribunal hearing and the applicant does not take issue with the Tribunal’s compliance with such obligation. Moreover, this is not a case in which the obligation to put information to the applicant for comment under s.424A(1) arose. In circumstances where the Tribunal was unable to be satisfied that the applicant met the criteria for a protection visa, s.65 of the Migration Act had the effect of requiring that it refuse the application. Its lack of satisfaction in that respect and its reasoning process are not matters which constituted information which had to be put to the applicant pursuant to s.424A of the Migration Act.
Nor is there anything in the material before the Court to support the claim that the Tribunal breached the rules of natural justice. In that respect counsel for the first respondent addressed, and I have considered, whether any issue arose from the rescheduling and postponement of the Tribunal hearing. First, no issue was taken as to whether or not the applicant received the notification of the Tribunal hearing invitation, nor specifically, with whether it met its notification obligations. In any event I note that the Tribunal wrote to the applicant at the address for service provided in the application for review (as well as to the other addresses which he provided). Consistent with authority considered and discussed in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [76]-[83], where the hearing was rescheduled, notice of such rescheduling must be reasonable. There is nothing before the Court to support any contention that the notice of the rescheduling was not reasonable. I note in that respect the notification of the rescheduling on 14 August 2002 and of the date of the rescheduled hearing by letter of 3 September 2002 (for a date of 13 September 2002).
The applicant has not raised any issues, nor is there anything before the Court to suggest that such time was inadequate in the particular circumstances of his case or otherwise unreasonable. No jurisdictional error is established in relation to the Tribunal obligations of notification and its rescheduling of the hearing date. In particular, there is nothing to suggest that there was unreasonably short notice in the sense considered by the Full Court in SZFML at [82].
Furthermore, in relation to the reference to a lack of response to the hearing invitation and the unexplained reference in the Tribunal decision to a letter returned to sender after the date on which the hearing was rescheduled, I note that in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] the Full Court expressed the view that the Tribunal, having complied with one of the methods prescribed in s.425A of the Act to notify an applicant, was not under a further obligation to search the papers lodged to discover if there might be some other avenue of communicating with the applicant. In fact in this case the Tribunal did endeavour to contact the applicant through the advisor and by telephone contact at the telephone number provided. Even if it made a factual error in its reference to an absence of response to the hearing invitation such error was within jurisdiction, given the Tribunal’s notification to the applicant, his failure to appear and the Tribunal’s attempts to contact him.
Insofar as it is contended that there was a lack of procedural fairness, (or a failure to comply with s.425) that is not established in relation to these circumstances or by the Tribunal proceeding to make its decision without taking further action to enable the applicant to appear before it under s.426A of the Act.
The second ground in the application is that the Tribunal “failed to internalise the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached s.424, s.430, s.439 and s.440 of the Act”. This ground refers to supporting facts and documents which are not present in the current case. In the affidavit filed in support of the application there is a reference to detailed submissions and supporting documents in support of this ground. However in fact there is no evidence of any detailed submissions or supporting documents provided to the Tribunal.
Nor, insofar as there is reference in that affidavit to the Tribunal depending on DFAT and other agency reports, do such submissions have any application to the decision in fact made by the Tribunal, which, as indicated above, did not depend on independent country information. Insofar as the applicant takes issue in that affidavit and in connection with his application for judicial review with the merits of the Tribunal decision, merits review is not available in this Court.
Finally in the application it is contended that the Tribunal “failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under s.476 of the Act”. This ground is lacking in clarity. There is nothing in the material before the Court to support any contention that there has been a breach of the rules of natural justice. The reference to grounds under a now repealed provision of the Migration Act does not assist in determining whether there is any jurisdictional error.
The applicant filed written submissions on 18 October 2007 after the matter was remitted by the Federal Court to this Court which raise other grounds. First, it is claimed that the decision was induced or affected by actual bias. Again a reference is made to s.476 which is no longer in operation, I have considered the applicant's claim of actual bias. An allegation of bias is a serious claim involving personal fault on the part of the decision-maker. It must be clearly articulated and proved (see Re Refugee Tribunal and Another; Ex parte H and Another (2001) 75 ALJR 982 at [27] - [32], and Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421). There is nothing in the material before the Court to support any claim that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, such that there could be said to be bias consisting of pre-judgment.
The applicant also contended that the Tribunal decision was not properly justified by the Act and that the Tribunal rejected his claims without considering his oral evidence in relation to major issues. As indicated, the applicant did not give oral evidence. No error is established in relation to the manner in which the Tribunal proceeded.
The applicant's written submissions claim that the Tribunal did not treat the rejection of his claims without oral evidence as a s.424A issue “as he brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal”.
Again, this submission bears no relationship to what actually occurred. The applicant did not attend the Tribunal hearing and there is no evidence that he submitted the statement made in connection with the protection visa application to the Tribunal. In any event, as indicated above, the Tribunal made its decision because, in the absence of the applicant’s attendance at the hearing, it was not able to be satisfied that the applicant met the criteria for the visa. Section 424A was not enlivened, as this reasoning was not information within s.424A(1).
The other contentions made by the applicant in the written submissions do not assist and generally are not relevant to the circumstances of the Tribunal decision. The claim that the Tribunal failed to consider the test under s.91R(2)(a) of the Act in relation to relocation does not establish jurisdictional error The issue of relocation did not arise. The Tribunal was not able to be satisfied on the inadequate evidence before it and in the absence of a hearing.
The written submissions also take issue with Tribunal use of country information. The Tribunal did not use country information in the manner contended.
Nor can it be said that it applied the wrong test by requiring independent evidence or that it left out individual elements of the applicant's claim and tested whether they individually amounted to persecution rather than looking at the claim as a whole. The Tribunal found that there was an absence of evidence in support of the applicant's claims and that it had not had the opportunity to explore a number of important issues with him.
It was also contended that there was illogicality in the Tribunal's lack of satisfaction that the applicant had a well-founded fear of persecution within the meaning of the Convention is. It is not established that such a conclusion was illogical, let alone illogical in a manner giving rise to a jurisdictional error.
The applicant also contended that in a number of ways the Tribunal failed to take into account, or to properly weigh, factual aspects of his claims. However, it has not been established that the Tribunal erred by failing to take into account integers of the applicant's claims in circumstances where it made its decision on the basis of a lack of satisfaction as discussed above.
The reiteration of the elements of the Convention definition does not establish jurisdictional error. Nor does the submission that the Tribunal failed to analyse properly the future harm the applicant may face if he had to return to India or that it failed to assess the real chance test, given that the basis for the Tribunal's decision was its inability to be satisfied at all in relation to the validity of the applicant's claims given the lack of evidence and the Tribunal's lack of an opportunity to explore a number of issues (some of which were referred to in its findings and reasons) at an oral hearing.
No jurisdictional error is established on any of the bases contended for by the applicant. As no jurisdictional error has been established, the application must be dismissed. It is not necessary to address the issue of the Court's discretion in relation to the remedies sought.
The applicant has been unsuccessful and the first respondent seeks costs in the sum of $5,000. The applicant submitted that he was not working and raised the issue of how he could pay. However, the applicant's impecuniosity and lack of work is not a reason for not awarding costs, although it may be a matter to be taken into account by the first respondent in determining how and when to seek to recover such costs. The amount of $5,000 is consistent with the amount provided for in the Federal Magistrates Court rules and I consider that it is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM
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