SZKQB v Minister for Immigration
[2008] FMCA 171
•7 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 171 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – as applicant did not attend Tribunal hearing in response to s.425A notice, Tribunal was entitled under s.426A to proceed to a decision. |
| Migration Act 1958, ss.425A, 426A, 441A, 441C Migration Regulations 1994, reg.4.35D |
| First Applicant: | SZKQB |
| Second Applicant: | SZKQC |
| Third Applicant: | SZKQD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1539 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 February 2008 |
| Date of Last Submission: | 7 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Blake Dawson |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,774.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1539 of 2007
| SZKQB |
First Applicant
| SZKQC |
Second Applicant
| SZKQD |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India. The first applicant claims that he was a well-known member of the Bhartiya Janata Party (“BJP”). He alleges that while in India he was politically active and that this subsequently led to him being attacked and his business premises set on fire. The applicants arrived in Australia on 1 January 2007.
The first applicant’s wife and son are the second and third applicants respectively. As they have no claims of their own separate from those of the first applicant, the first applicant will be referred to as “the applicant” in these reasons.
The applicant claims to fear persecution in India because of his political opinion.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 February 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 6 of the Tribunal’s decision (Relevant Documents (“RD”) pages 129 – 131). Relevantly, they are in summary:
a)the applicant’s father was a well-known businessman who had been involved in the BJP as an active worker since 1976. He was a dedicated worker and he sacrificed his whole life for the party. The applicant’s father received numerous social services awards for his community work and passed away in 1994 during his work as a member of the party;
b)after the death of his father the applicant took over the family business. He decided to join the BJP in order to secure political support for his business. In 1999 he joined the party as a “primary level worker”;
c)during an election for the local legislative assembly, the applicant campaigned for the BJP and became well-known in the local area because of his business and his family background;
d)people in the opposition Muslim party tried to demoralise the applicant by using dirty political tactics but they did not succeed, so they planned to attack the applicant at his place of business. Although they failed again, the applicant began to fear for his life and his family;
e)a friend of the applicant suggested that he travel overseas so he visited Australia and found that it was a country with good values and culture;
f)when the applicant returned to India he continued to fear for his life and so fled to London and Europe. However, after some time, he received news that he was no longer in danger so he decided to return to India where everything was normal for six months;
g)the applicant began to attend BJP meetings. When his enemies in the Muslim communities found out, they set his business on fire while the applicant was away travelling. The applicant went to the police but the matter has yet to be resolved;
h)two months later, the applicant was driving in his car when he was stopped by ten to fifteen people who fought with him. The applicant was injured but not seriously and he lodged a compliant at the police station;
i)another two months later, the applicant and his family were attacked by some unknown people. The applicant and his family were injured and hospitalised and the applicant again lodged a complaint with the police;
j)the applicant was attacked a third time after a party meeting. This time the assailants were armed but the applicant managed to escape with the help of another party member; and
k)the applicant came to Australia where he received news that people in India were looking for him. The applicant now fears for his safety in his home country and seeks asylum in Australia.
The Tribunal’s decision and reasons
On 16 March 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone (RD 118). The Tribunal invited the applicant to a hearing on 11 April 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend then the Tribunal might make a decision on his application without further notice. Although the applicant advised that he would attend, he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept the applicant’s claims, noting that:
i)the applicant’s statement of claims lacked many essential details, such as what happened with his police complaints;
ii)his evidence was notably short on dates and places;
iii)no corroborating information or documents were submitted, such as a copy of the police reports;
iv)the applicant claimed to have been persecuted by Muslims but according to independent country information, the overwhelming majority of the people in his state are Hindu and the BJP won a majority of the state’s seats in the last national election;
v)because the applicant failed to attend the Tribunal hearing, the Tribunal had a number of relevant questions left unanswered, such as why the applicant was unable to avail himself of the protection of the police forces which were controlled by a state government dominated by his party and why he was not able to relocate elsewhere in India;
b)consequently, the Tribunal:
i)was not satisfied that the applicant was indeed a militant of the BJP as claimed;
ii)was not satisfied that the events the applicant described in his application took place; and
iii)did not accept that there was a real chance that such events would occur should the applicant return to India in the foreseeable future.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal did not make its decision in good faith and in accordance with the rules of natural justice;
b)the applicant did attend the hearing and gave oral evidence to the department;
c)the Tribunal applied the wrong test on the issue of relocation;
d)the Tribunal failed to give proper and adequate reasons; and
e)the Tribunal erred in failing to consider all the claims and issues put forward by the applicant.
Dealing with each of these grounds in turn:
Good faith and breach of the rules of natural justice
As far as the allegation that the decision was not made in good faith, this can be better characterised as an allegation that the Tribunal acted in bad faith. However, in the context of this proceeding this is a meaningless allegation. The Tribunal had before it very limited information because the applicant failed to attend the Tribunal hearing. The Tribunal’s decision record clearly indicates that, such information as it had it gave proper consideration. There is nothing in the Tribunal record to suggest that the Tribunal did not approach its task in a proper and conscientious manner and in the absence of any evidence other than the decision record, as is the situation here, no finding of bad faith or a want of good faith is possible given what the decision record demonstrates on this occasion.
As to the allegation that the decision was not made in accordance with the rules of natural justice, it should be observed that the applicant was invited to attend the Tribunal hearing and yet he did not do so. He was accorded an opportunity to give evidence and present arguments to the Tribunal and if he did not do so he cannot complain that the Tribunal failed to act in accordance with the rules of natural justice.
The material contained in the bundle of relevant documents which is Exhibit A in these proceedings does not support the allegation made concerning the breach of the rules of natural justice and given that the applicant has put no evidence before the Court in support of this allegation it cannot be made out.
The applicant attended the hearing and gave oral evidence
The allegation that the applicant attended the hearing is contradicted by the express terms of the Tribunal’s decision record. The applicant has put no evidence before the Court to suggest that the decision record is incorrect and, in the absence of such evidence, this ground cannot support a finding of jurisdictional error on the part of the Tribunal.
Tribunal applied the wrong test on the issue of relocation
The question of relocation does not in reality arise in these proceedings because the Tribunal concluded that it was not satisfied that the applicant was a BJP militant, or that the events he alleged had occurred. That is to say, the basis of the persecution alleged by the applicant and the persecution he allegedly fears in the future was found by the Tribunal not to have existed. Unless there was some basis for the applicant to have had a well-founded fear of persecution for a Convention reason in his home location, there was no call to consider the issue of relocation.
Consequently, whether the Tribunal applied the wrong test or the right test of relocation is neither here nor there, but in any event, the Tribunal made no such finding in this case. Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal failed to give proper and adequate reasons
A consideration of the Tribunal’s decision record shows that it is not correct to say that the Tribunal failed to give proper and adequate reasons. The Tribunal set out the information it had, explained why it had so little information and reached the only conclusion which was open to it in the circumstances.
In essence, that was because it was not satisfied that the applicant had met the criteria for a protection visa based on the minimal information which had been placed before it. This ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal failed to consider all claims and issues
As already summarised in these reasons, the Tribunal did set out the applicant’s claims. If the applicant had any additional claims that he wished to make then he should have attended the Tribunal hearing. The applicant has not particularised in what respect he says that the Tribunal failed to consider the claims and issues, and in such circumstances, and given the contents of the Tribunal’s decision record, I cannot conclude that this ground can be made out.
Generally
But in any event, the essential basis for the Tribunal’s decision was that the applicant failed to appear before it and, as a result, it had insufficient information to be satisfied that the applicant met the criteria for a protection visa.
The Tribunal complied with its obligation to send the applicant an invitation to a hearing, which it is clear he did receive because he returned the “response to hearing invitation” (RD 121). According to the s.425A notice (RD 118) and the Tribunal’s decision record (RD 129), the Tribunal wrote to the applicant on 16 March 2007 at the address given by him in his application to the Tribunal for review, inviting him to a hearing on 11 April 2007.
It is thus clear that the Tribunal satisfied the notice and procedural requirements of ss.425A, 441A, and 441C of the Act and reg.4.35D of the Migration Regulations 1994 (Cth). That being so, the Tribunal was entitled to proceed to a decision by virtue of s.426A, and no error is disclosed because it did so.
In respect of the decision which it actually made pursuant to the powers given to it by s.426A, the fact that it was not satisfied that the applicant met the criteria for a protection visa is unsurprising given that it had advised him in the s.425A notice that it could not make a decision in his favour on the papers. The Tribunal’s role is to determine whether it is satisfied that an applicant meets the criteria for a protection visa. In the absence of sufficient evidence and arguments which can lead it to such a level of satisfaction under the Act, the Tribunal has no alternative but to affirm the decision of the delegate. The applicant’s failure to attend the Tribunal hearing essentially guaranteed that the Tribunal was going to affirm the delegate’s decision.
In the circumstances of this case, the Tribunal did not err by reaching the conclusion it did.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 February 2008
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