SZMZE v Minister for Immigration

[2009] FMCA 625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZE v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 625

MIGRATION – Review of RRT decision – applicant a citizen of India – where Tribunal granted applicant lengthy adjournments on account of his medical condition before deciding to proceed without a hearing – where applicant did not provide a response to s.424A letter – whether applicant allowed a fair chance to attend the hearing – whether he was given a reasonable time to respond to the s.424A letter.

Migration Act 1958, ss.424A, 426A

SZGZQ v Ministerfor Immigration [2007] FCA 62

Applicant: SZMZE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3107 of 2008

Judgment of: Raphael FM

Hearing date: 26 June 2009

Date of Last Submission: 26 June 2009

Delivered at: Sydney

Delivered on: 26 June 2009

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Ms S A Sirtes

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY

SYG 3107 of 2008

SZMZE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 28 March 2007 and on 10 May 2007 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 5 June 2007 the delegate of the Minister declined to grant him a protection visa and on 21 June 2007 he applied for review of the delegate's decision from the Refugee Review Tribunal. There is contained between [CB 169] and [172] a lengthy history of the attempts by the Tribunal to bring this matter to a determination in the fairest possible means, so far as the applicant was concerned, including the provision of a hearing. 

2. During the course of the period between 4 July 2007, when the Tribunal wrote to the applicant providing him with a hearing invitation, and 3 July 2008 when the Tribunal determined to proceed without hearing from the applicant, there is a lengthy history of the provision of medical certificates, the submission of the applicant to a psychiatric evaluation on behalf of the Tribunal and lengthy adjournments granted. When the Tribunal came to consider whether or not it should proceed in July 2008 it took into account not only the current complaint of back problems from which the applicant said he was suffering but also the psychological disturbance originally claimed but which had ceased to be the subject of any medical certificates after 17 April 2008. The final certificate submitted by the applicant to the Tribunal related to an examination of the applicant on 25 June 2008 which indicated that he was suffering from acute lower back pain and possible disc injury and was unfit for work until 3 July 2008 [CB 136]. The Tribunal came to the view that this certificate did not demonstrate any more than that the applicant was unable to work at the date of the hearing. It did not indicate that he could not have attended the Tribunal and taken effective part in the Tribunal's processes [CB 174] at [32].

3. Although the Tribunal determined under s.426A of the Migration Act1958 (the “Act”) to proceed to make a decision on the review without taking any further action to enable the applicant to appear before it, it did in fact send him, on 3 July 2008, a very detailed letter pursuant to s.424A of the Act. The applicant sought an extension of time from 28 July 2008, the date originally given to respond to that letter, and the Tribunal granted a further extension until 15 October 2008. No response had been received by the Tribunal on 15 October but on 16 October the applicant telephoned and said that he would be responding the next day. The Tribunal told him that the deadline was 15 October but if he had anything to submit he should send it in. No reply was received on 17 October, although on that day the applicant said he would be responding on 20 October. The Tribunal noted that as at the date of making its decision, which was 28 October 2008, no further submissions had been received.

4. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was based upon religion/membership of a particular social group. The applicant claimed that as a Hindu living in the Indian state of Jammu, the majority of his population were either Sikhs or Muslims; claimed that he had been targeted by Sikh militants and in particular the KZF, both as a child and later when his family, which had removed itself to Bangalore for a considerable period of time, returned to Jammu in 1997.

5. The applicant made a particularly serious charge against the KZF which was that a demand had been made by them to pay the group 100,000.00 rupees otherwise his business would be finished and his wife and child would be kidnapped. 

   “He was trying to find some opportunity to leave the country with his family to save their lives but on 20 February 2007 the Sikh militants abducted his son.  He reported this to the police but has no idea what action they took.  The authorities failed to give him protection.”

   The applicant and his wife then left the country for Australia. 

6. The s.424A letter written by the Tribunal encapsulates the Tribunal's concerns about the applicant's claims. It points out a number of areas in which the applicant's statements appeared to the Tribunal to lack credibility. The first matter relates to the applicant's passport. He said that he had been born in Poonch in Kashmir whereas his passport indicated that he had been born in Jammu. The second also related to the passport. The applicant said that he had never used any passport other than the one he entered Australia upon, but it was clear from that document that an earlier passport had been issued before arriving in Australia and returned to India on each occasion. The Tribunal had concerns that the applicant's claims might not be genuine.

7. The Tribunal also noted that despite the fears the applicant claimed that he and his family had about living in Jammu, first, they moved themselves into a camp in that area in which they were the only Hindus and then, having left the camp for Bangalore, they returned to the same area and commenced a successful farming enterprise. The Tribunal pointed out to the applicant an inconsistency in the dates upon which a claim had been made concerning the abduction of his brother and that there was no substantiation for this very serious claim. The document that had been produced to substantiate it appeared to have been produced on a personal computer. It contained phrases that the Tribunal felt were not consistent with a first information report. The Tribunal noted that although the applicant claimed to be a very prominent member of the Hindu Raksha Committee, and although he claimed that his son had been abducted, there were no reports about this abduction in any of the relevant newspapers and that he himself had not produced any evidence to substantiate the claims of the abduction.

8. It will be seen from a perusal of the s.424A letter [CB 177-180] that it raised serious concerns and that even if the applicant had not been able to appear before the Tribunal, he could have provided the Tribunal with considerably more information which might have assisted his cause. Notwithstanding the very lengthy delays that had already been given to the applicant, the Tribunal gave him a further generous time period in which to respond to the s.424A letter but no response was received and yet another request for an adjournment was made.

9. The gravamen of the Tribunal's decision was that it could not be satisfied from the information that it did have before it that the persecution that the applicant said he had suffered had occurred. 

   “The implausibilities and inconsistencies which are evident in the applicant's written account do not relate to marginal or irrelevant areas of his claims to be a refugee.  They are, instead, at the heart of his alleged fear of serious harm at the hands of Sikh or Muslim militants in India.  Having considered all his claims to have suffered harm, I am not satisfied that they are credible.  Specifically, I am not satisfied that he or other members of his family were ever targeted by Sikh or Muslim militants because of their Hindu religion or their alleged refusal to convert to the Sikh religion, or that his brother was ever kidnapped for these reasons.  I am not satisfied that he was ever a co-founder or leader of an organisation named Hindu Raksha Committee dedicated to protecting the rights of Hindus in his area, or that he or his family were ever harmed or threatened for such a reason, nor am I satisfied that his son was ever kidnapped.” [CB 182] at [56]

10. In SZGZQ v Ministerfor Immigration [2007] FCA 62 Greenwood J said, at [13] to [14]:

    “It is clear from a consideration of the facts and the approach adopted by the Tribunal in reaching its conclusions on those facts, that the Tribunal has approached the exercise of the review on the footing that the legislation (s 65(1)) requires the Tribunal to refuse the appellant's application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.  The Tribunal has correctly approached its task by determining that if it is unable to be satisfied of those matters, the Tribunal must ‘refuse to grant the visa’ (s 65(1)(b)).  The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 255 at [15], per Ryan, Jacobson and Lander JJ; Minister for Immigration & Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], per Black CJ, Sundberg and Bennett JJ and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.”

    It seems to me that the Tribunal's approach in this case was entirely consistent with the law as expressed by his Honour. 

11. In his application before this Court filed on 28 November 2008 the applicant sets out four grounds of application. The first is that he was sent to see Dr Walker before attending a hearing to determine whether this was required and he was not allowed to find his own doctor. The Tribunal sent the applicant to Dr Walker for a medico-legal opinion as to his capacity to attend a hearing. Dr Walker provided that opinion and as a result the Tribunal put off a hearing for a very considerable period of time. As I have already noted, after April 2008 the applicant no longer made any complaints of a psychological nature. The Tribunal certainly did not prevent the applicant from finding his own doctor, it merely noted that he was indigent and would have difficulty in so doing.

12. The second ground raised by the applicant was that he was not allowed a fair chance to attend the hearing.  To my mind, nothing could be further from the truth.  This Tribunal bent over backwards to assist the applicant and gave him extensions of time for a period of over a year, from June 2007 when he lodged his application, to July 2008 when the last hearing was scheduled.

13. The third ground was that the applicant was not sent a letter of possible reasons for refusing the application for a delay in the hearing date.  The Tribunal is not required to provide an applicant with advance notice of its intentions when exercising its discretion.  In fact, in this case there was communication at all times between the Tribunal and the applicant and he was made aware on 1 July 2008 that the Tribunal was unlikely to grant him a further indulgence.

14. Finally, the applicant claimed that he was not given a reasonable time to respond to the s.424A letter considering his medical condition. There is no evidence about the applicant's medical condition after the certificate which indicated that the applicant was able to go back to work on 4 July 2008. As has been noted, the Tribunal extended the time for the applicant to respond to the s.424A letter until October 2008.

15. When the applicant corresponded with the Tribunal on 25 July requesting an extension of time to respond, he did not mention his medical condition but referred to the difficulties of obtaining documents from Jammu and Kashmir.  In this regard it should be noted that by 25 July 2008 the applicant already had over a year since his application to the Tribunal to provide documentation.  I just cannot see that the Tribunal acted unreasonably.

16. Before me today the applicant said that the Tribunal did not give him any opportunity to attend the hearing.  He said he was sick and that he had a witness.  The back problem from which the applicant allegedly suffered at the time of the Tribunal hearing on 3 July 2008 has already been dealt with and I am satisfied that when the Tribunal made its decision to proceed it did so in a manner which was reasonable and which could not be said to be an improper exercise of its discretion.

17. As regards the witness, it is true that the applicant told the Tribunal that he had a witness, but he provided no further particulars about the witness and there is no obligation upon the Tribunal to hear from any witness.  There was nothing to prevent the applicant from providing the Tribunal with an indication of what the witness might have said if he had been called or identifying him.  I do not believe that the failure by the Tribunal to hear from the witness constitutes a jurisdictional error.

18. I am unable to see that there are any grounds for the applicant to successfully allege that the Tribunal fell into jurisdictional error in the manner in which it dealt with his application.  I therefore dismiss this application for review.

19. The application has not proceeded before me with the usual smoothness. The applicant has been granted several adjournments on the grounds of his health. The respondent has been obliged to appear previously. The adjournments have generally been given at the last moment as medical certificates have been provided. In those circumstances I think it is only fair that I should assess costs slightly in excess of the scale and I order that the applicant pay the respondent's costs assessed in the sum of $6,500.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  3 July 2009