SZLAF v Minister for Immigration
[2007] FMCA 1913
•25 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1913 |
| MIGRATION – No denial of procedural fairness in not believing an applicant’s evidence – assessing evidence and weight is a pivotal function of the Tribunal – bias not established – non-attendance at hearing – rejection inevitable consequence. |
| Migration Act 1958 (Cth), s.425, 425A, 426A, 441A Migration Regulations 1994 (Cth), reg.4.35D Federal Magistrates Court Rules 2001, r.44.12(1)(c) |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| First Applicant: | SZLAF |
| Second Applicant: | SZLAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2038 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 25 October 2007 |
| Date of last submission: | 25 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2007 |
REPRESENTATION
| The Applicants did not appear |
| Solicitors for the Respondents: | Ms L. Buchanan of Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to Rule 44.12(1)(c).
The applicants are to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2038 of 2007
| SZLAF |
First Applicant
| SZLAG |
Second 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”) signed on 21 May 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 6 February 2007 the applicants (who are husband and wife) applied to the Department of Immigration and Multicultural Affairs for protection visas. The applicant wife (SZLAG) did not submit her own claims to refugee status, but is included as a member of the family unit in the application of her husband (SZLAF – hereinafter “the applicant”). In this application he claimed that his business partner was associated with mafia groups and corrupt political leaders. The applicant claimed that he was attacked and threatened by these groups after he pursued his partner through the Indian court system (Court Book “CB” 32-34).
The application was refused by a delegate of the first respondent on 24 February 2007 (CB 75-83) and by the Tribunal on review on 21 May 2007 (CB 95). The matter is now before this Court pursuant to an application for judicial review filed on 28 June 2007.
The applicant has failed to appear to advance arguments in support of his application.
Issues for determination
The issues before the Court are as follows:
·Whether or not believing an applicant’s evidence is a denial of procedural fairness;
·Whether the Tribunal was biased; and
·Whether s.425 was complied with, and what is the result of non-attendance at a hearing after a s.425 invitation has been validly sent.
The application
In his application, the applicant set out the following grounds:
(1)The RRT made decision on 21 May 2007. The RRT handed down decision on 7 June 2007.
(2)The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
(3)We were denied procedural fairness when the Tribunal member did not believe in our submissions and oral evidence. The Tribunal’s decision is totally contradictory of Professor Hathaway’s quote. A claimant should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details.
James Hathaway 1991 “The law of refugees status”, Butterworths Canada, contrary to its claims of not taking an overly stringent approach to questions of credibility, in this particular situation the Tribunal seems to have done just that.
The applicant fees [sic] that the Tribunal did not give weight to the statements made by them in particular harassment. The member based his whole decision on one sided information prepared for denying the application for the people coming from India.
Findings of the Court in relation to the grounds in the application
Having decided that the grounds in the application raise an arguable case, the Court proceeded to consider the grounds in the application.
Ground one merely gives the date of the decision and does not raise a ground for review.
Ground two alleges an incorrect application of the law to the facts. This ground has not been established. It is rejected.
Ground three alleges that the Tribunal denied the applicant procedural fairness by not believing the applicant’s evidence and not giving it the weight the applicant wishes, and that the Tribunal was biased. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Rejecting the applicant’s evidence and assessing the weight of evidence is not a denial of procedural fairness; it is a pivotal function of the Tribunal.
As to the claim of bias, no particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established.
Ground three asserts that the Tribunal must not take an overly stringent approach to questions of credibility. The Tribunal cautioned itself to this effect (CB 100.9) and proceeded accordingly. The Tribunal considered the applicant’s contentions (CB 101.1-102.4) and concluded that they were “vague, imprecise and unsupported”. The Tribunal was entitled to reach that conclusion – it does not show that the Tribunal was overly stringent.
The applicant was invited to a hearing before the Tribunal in accordance with s.425 (CB 90-91). The 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)(c)(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(1), 425A, 426(1) and 441A(4) of the Act. No breach of s.425 or s.425A occurred.
The applicant failed to attend the hearing (CB 102.5). 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 v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. 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 (ante) per Downes J at [5].
An applicant must establish their case to the satisfaction of the Tribunal. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Also,
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The Tribunal stated at CB 102.6 that
The applicant has failed to attend his scheduled hearing and present oral arguments and evidence to explain himself and:
· Without the opportunity to question the applicant to explore the claims made by the applicant; and
· In light of his failure to provide any documentary evidence to support his claims, and;
· Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claims (and discussed above);
The Tribunal cannot be satisfied that the applicant has a well founded fear of harm for any Convention reason in India in the reasonably foreseeable future.
Ground three is rejected.
Conclusion
Accordingly, the application is dismissed pursuant to Rule 44.12(1)(c).
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 16 November 2007
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