SZLEM v Minister for Immigration
[2008] FMCA 507
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLEM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 507 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – failure of applicant to attend Tribunal hearing – whether applicant should have been given further opportunity to attend a hearing – whether breach of s.424A of the Act – whether breach of natural justice – merits review not function of judicial review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 424C, 425, 426A, 474 |
| SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 |
| First Applicant: | SZLEM |
| Second Applicant: | SZLEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2492 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 20 February 2008 |
| Date of Last Submission: | 20 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr B. O’Donnell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 14 August 2007 and the amended application filed on 29 October 2007 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,500 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2492 of 2007
| SZLEM |
First Applicant
| SZLEN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 10 July 2007 and notified to the applicant by letter dated 31 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The first named applicant was born on 7 April 1980 and was aged 26 years at the time of his application for a protection visa. In this Court, the first named applicant appeared on behalf of his wife who is included in the application. For convenience, the first named applicant will be referred to as “the applicant” in these proceedings.
The second named applicant, the wife of the applicant (the applicant wife), was born on 2 February 1985 and was aged 21 years at the time of her application for a protection visa.
The applicants claim to be nationals of India, and of Hindu faith.
The applicants arrived in Australia on 6 December 2006 on Indian passports issued in their own names.
The applicants lodged an application for protection visas on 20 December 2006. The applicant claimed to fear persecution in India from Muslim groups, the government and the police (Court Book (CB) 32–33). In his statement attached to the protection visa application, the applicant claimed to have been an active member of the Vishwa Hindu Parishad (VHP) whose main aim is to protect and cultivate Indian culture. He claimed his work was to spread national integration and Indian culture, which angered Muslim activists who threatened him by phone calls and conspired to kill him. He claims he was attacked and his car was damaged; he and his wife were attacked on a second occasion; he had to leave his home; he was attacked a third time and was hospitalised for 7 days; he complained to the police but they would not take his complaint and accused him of being involved in crime (CB 149).
The applicant wife claimed to be a member of the applicant’s family unit and relied on his claims to be a refugee.
On 20 February 2007 the delegate refused to grant the protection visa on the basis that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (CB 114-121) (see Legislative framework).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 14 March 2007 the applicants applied to the Tribunal for review of the delegate’s decision (CB 122–125).
On 23 March 2007, the Tribunal sent a letter to the applicants inviting them to appear by video link at the Griffith Police Station on 14 May 2007 to give oral evidence and present arguments (CB 129-130).
On 26 March 2007, the Tribunal sent a letter pursuant to s.424A of the Act seeking the applicant’s comments on information set out in Attachment A to the s.424A letter (CB 132-133), which would, subject to any comments by the applicant, be the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa (CB 131). The applicant did not respond to the s.424A letter.
On 27 April 2007 the Tribunal wrote to the applicants rescheduling the hearing for 9 July, at the same location (CB 135).
The applicant completed and signed the Response to Hearing Invitation form dated 2 May 2007 indicating that they would attend the rescheduled hearing (CB 137-138), however they did not attend.
In these circumstances, the Tribunal proceeded to make its decision pursuant to s.426A of the Act, on the basis of material in the Departmental file, which included the protection visa application with the attached statements, and the delegate’s decision record.
The Tribunal’s findings and reasons (CB 150-151)
On 31 July 2007, the Tribunal handed down its decision affirming the delegate's decision.
The Tribunal rejected the applicant's claims based on “insufficient detail” provided by the applicant to support his various claims. The Tribunal pointed to the paucity of material to support the applicant’s claim, and concluded that:
Based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes refugee protection obligations in Australia … Accordingly, based on the claims provided, the Tribunal is not satisfied all the statutory elements of the grant of refugee protection are made out (CB 150).
The proceedings before this Court
The applicants filed the application in this Court on 14 August 2007 setting out 3 grounds of review of the Tribunal’s decision. On 29 October 2007 the applicants filed an amended application setting out 2 grounds of review.
The applicant appeared in person before the Court on 20 February 2008 with the assistance of a Hindi interpreter. Mr O’Donnell of counsel appeared for the first respondent.
The applicant confirmed that he sought to rely only on the amended application, however given that the applicant was unrepresented at the hearing, the Court has also considered the grounds of the application.
Grounds of the application
The three grounds of the application are:
i) That the tribunal made denial of natural justice. Because it failed to provide an other opportunity to appear hearing before the tribunal.
ii) That the tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.
iii) That the tribunal's decision was in breach of section 424A(1) of the Migration Act.
Ground 1 of the application
The applicant confirmed at the hearing that he had not attended the scheduled Tribunal hearing (Transcript, 20/2/08, p.13).
The applicant has failed to provide any particulars of how he claims the Tribunal denied him natural justice by failing to provide him with a further opportunity to appear at a hearing.
The letter of 23 March 2007 inviting the applicants to the hearing, (CB 129) and the reference to the content of that letter in the subsequent letter of 27 April 2007 inviting them to attend the rescheduled hearing (CB 135) stated that:
The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.
The applicants were therefore clearly on notice that the information they had so far provided did not suffice to ground successful applications for protection visas. In those circumstances, as stated by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
Section 426A provides that if an applicant is invited to attend a hearing and does not do so, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it.
In these circumstances, I consider that, pursuant to s.426A, the Tribunal was entitled to make its decision on the review without taking any further action to enable the applicants to appear before it. As stated by the Full Federal Court in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [28]:
The appellant had a full opportunity to appear and present his case. Accordingly, the Tribunal was entitled to proceed on the materials before it and was not required to investigate why the appellant had not appeared at the hearing.
The first respondent, however, raises the question of whether there could be any procedural unfairness in the letter of invitation to attend the rescheduled hearing describing the venue as the "Griffith Police Service - NSW", without it also providing the relevant street address. The first respondent tendered affidavit evidence stating that there was only one Police Station in Griffith and hence there could be no confusion as to its location.
The applicant, however, does not take issue on this point. At no time in his oral submissions does he raise any failure to specify the address of the Griffith Police Service as the reason for his failure to attend the rescheduled hearing.
The applicant variously submitted, in this regard, (Transcript, 20/2/08) as to why he did not attend the rescheduled hearing:
I got the paper late from the post and I had nobody to read it to me. I didn’t know how to read English and I didn’t know what was in the papers (p.10) …
there was no-one who could read it and tell me and that is why I was late and the date went by and I could not attend the hearing (p. 11)
I didn’t have the money too (p11)
I didn't know that one could for anything in police station. I thought it was something to do with the police. I couldn't read it. I couldn't understand it. (p.12)
Similarly, the applicant submitted that he did not reply to the s.424A letter because:
I didn’t know what was in that letter. I had no-one to read it. I was living on a farm. Nobody knew English. Nobody could translate it for me.
I do not consider that any of the reasons offered by the applicant for his not attending the Tribunal hearing raise a question of procedural fairness. Nor do I consider that they sit comfortably with the following explanation he gave for why he was able to send the Response to Hearing Invitation form back to the Tribunal:
That time one person asked me. He said: "Are you going to the hearing?" I said: "Yes, I would like to go to the hearing.” He said: "Just fill this form and we'll send it.” So he [a student who was visiting] sent it (Transcript, 20/2/08, p. 12).
Furthermore, the letter of invitation stated that:
Arrangements have been made to conduct the hearing by video conference. The Member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible …
Please contact the Tribunal immediately if there is a difficulty in the hearing proceeding on this date … Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.
The invitation then asks the applicant to complete the Response to Hearing Invitation form, and invites the applicant to call the general enquiry line if he has any questions about the hearing. It also, and importantly, states that “The Translating and Interpreting Service (TIS) is available on 131 450”.
The applicant did not contact the Tribunal; he did not avail himself of the interpreting service; nor did he in any way indicate that he had a difficulty attending the hearing on the day. Indeed, the applicant completed the Response to Hearing Invitation stating that he wanted to attend the hearing.
Moreover, in this case, this was the second letter of invitation sent to the applicant, which was in exactly the same form as the earlier letter of invitation of 23 March 2007. This meant that the applicant had some 3½ months in which to get any assistance he needed to understand its contents and indeed his completing the Response to Hearing Invitation form provides some evidence that he understood this part of the process.
Highly relevant, also, in considering whether the applicant was accorded natural justice, is the s.424A letter sent by the Tribunal to the applicant. The letter stipulated that the period allowed for a response was up to the 18 April 2007. The applicant did not reply, nor did he seek an extension of time. The applicant’s failure to reply to the s.424A letter within the stipulated period has the following legislative consequences:
· the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information in the letter: s.424C(2)
· the applicant is "not entitled to appear before the Tribunal": ss.424C(2); 425(2)(c); 425(3). As Gleeson CJ observed in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162, at [19], in this regard :
Nor is a hearing necessary if the applicant, having been invited to comment under s 424A, fails to make the comment within the stipulated time (s 425(2)(c)). The need for a hearing under … s 425 will be governed in many cases by whether or not the applicant has responded within time to the s 424A invitation, (see also McHugh J at [52]).
The Tribunal's s.424A letter drew both of these consequences to the attention of the applicant, in the following bold type:
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under s.425 of the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.
Since the Tribunal had not received a response to the s.424A letter by 18 April 2007, nor had the applicants by that date accepted the 23 March 2007 written invitation from the Tribunal to attend the hearing, the applicants were henceforth "not entitled to appear before the Tribunal": (s.425(3)). The Tribunal, nevertheless, thereafter wrote to the applicants on 27 April 2007 inviting them to attend the re-scheduled hearing on 9 July 2007. The applicants accepted that invitation, but failed to attend.
I consider that the applicant thereby forfeited any entitlement he may otherwise have had to appear before the Tribunal to give evidence and present arguments. Contrary to the applicant’s assertion that he was denied natural justice, I am thus satisfied that the Tribunal went beyond its statutory obligations in inviting the applicants to the re-scheduled hearing, let alone providing them with any further opportunity over and beyond that, to attend before it.
The applicant was not entitled to common law procedural fairness: s.422B of the Act. The Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8]). I am satisfied therefore that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application
The applicant makes the generalised claim that the Tribunal “made error of law and lack of procedural fairness” and therefore committed jurisdictional error.
The applicant has provided no particulars to support this ground of review. In the absence of particulars, this ground is meaningless. In any event, the Court relies on its reasoning on these matters under grounds 1 and 3 of the application, and ground 1 of the amended application.
Accordingly, Ground 2 of the application is not made out.
Ground 3 of the application
The applicant claims that the “Tribunal's decision was in breach of section 424A(1)”. The applicant has provided no particulars to identify how he says the Tribunal has breached this provision.
As observed by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [50]:
the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to commit upon it.
I am satisfied that the Tribunal, in Attachment A to the s.424A letter properly complied with the statutory requirements in that it:
·gave the applicant clear particulars of all the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, including country information (which it was not required to give pursuant to the statutory exception in s.424A(3) of the Act). For instance, the Tribunal stated in this regard that:
based on country information it has seen, [citations provided] the Tribunal may not accept the Hindu applicant would not be provided adequate state protection in India. Please comment.
·made it clear that the information was relevant to the review, and that it may lead the Tribunal to affirm the decision that was under review. For instance, it stated in this regard that:
based on the lack of sufficient detail provided in the applicant's claims, the Tribunal may not accept the applicant has a well founded fear of persecution for the reasons claimed. Please comment.
·invited the applicant to comment on or respond to each matter raised in the letter.
The s.424 letter also invited the applicants to provide "any further evidence or submissions you wish to make in support of your case". The applicant did not respond (and see further under ground 1 of the application above).
The applicant was therefore fully informed from the s.424A letter of the concerns of the Tribunal from which it might, subject to his response, draw an adverse conclusion.
Furthermore, the content of Attachment A to the s.424A letter became the Claims and Evidence section of the Tribunal's final decision. The applicant was therefore fully on notice of the issues upon which the Tribunal based its Findings and Reasons.
I therefore detect no breach of s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal within the statutory framework of the Act.
Accordingly, Ground 3 of the application is rejected.
Grounds of the amended application
The grounds of the amended application are:
i) The Tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution the applicant claims.
Particulars: Section 91R (1) (b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.
The Tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicant's claim and therefore failed to apply correct test in accordance with section 424A (1) of the Migration Act. Ref SAAP v Minister for Immigration and Multicultural Affairs.
ii) The Tribunal has importantly dealt with the aspect of the applicant's claim relating to the state tolerance and complicity of the applicant's religion and membership of a particular social group and as a result of all he faced financial hardship, to whom the Australia has protection obligation as a member of such a group and therefore the Tribunal’s decision was involved jurisdictional error and failure of jurisdiction or misapplication of law and procedure. The Tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN Convention and therefore relocation principles is not the correct test by the Tribunal. Therefore misapplying the law is in fact failure of the Tribunal's jurisdiction. The matter should be remitted to the Tribunal for further determination and to decide in accordance with the law and procedures.
Ground 1 of the amended application
The applicant has failed to provide proper particulars of how he says the Tribunal wrongly applied ss.91R(1)(b) and (c) of the Act to the facts as found.
In any event, it is clear from the Tribunal Findings and Reasons that it did not reject the applicant’s claims on the basis of “the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution”.
Rather, the Tribunal rejected the applicant’s claims based on the lack of sufficient evidence provided by the applicants to support them. As stated by the Tribunal:
Based on the insufficient detail [the applicant] provided, the Tribunal is not satisfied the applicant invokes refugee protection obligations in Australia. For instance, the applicant did not provide much if any detail on why he feared being killed by " unsocial elements"; why he feared the Indian "police, opposition leaders, thugs of Muslim gang etc"; how "unfaithful politicians use their influence to mistreat [him]"; why he feared the state would be unwilling or unable to protect him; and why he feared that corrupt practices exacerbated his position. Neither did the applicant provide much if any detail as to his work as a "member of the Vishwa Hindu Parishad"; why " activists of Muslims were angry" with him; why he was attached; why he travelled to Ahmedabad; and why the police then attended the applicant's home and said he was "involved in crime.
The Tribunal was not required to engage in "an uncritical acceptance" of any or all claims of persecution made by the applicant: Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
Furthermore, as stated previously, the applicant was squarely on notice from the outset by the statement in the original letter of invitation to attend a Tribunal hearing that the Tribunal "has considered the material before it but it is unable to make a favourable decision on this information alone" (CB 129). As relevantly observed by the Full Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
In any event, it is not the role of the Court to engage in impermissible merits review of the Tribunal's factual findings: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
It is also well settled that a decision-maker is not required to make the applicant’s case for him or her: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. Indeed, an applicant must supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The applicant clearly has not done so in this case.
Otherwise, the remainder of the matters raised by the applicant under this amended ground, have already been dealt with under grounds 1 and 3 of the application.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
This ground is not particularised. To the extent that it suggests that the Tribunal misapplied “the law and procedure”, I rely on my reasoning under grounds 1 and 3 of the application, and ground 1 of the amended application.
To the extent that it suggests that the Tribunal “did not apply [the] correct test of relocation principles”, it appears entirely misconceived. The Tribunal made no findings in relation to the relocation of the applicants in India. Rather, as set out above, the Tribunal rejected the applicant’s claims on the basis of the insufficiency of the material before it.
Accordingly, Ground 2 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and amended application before this Court are dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 24 April 2008
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