SZNQS v Minister for Immigration

[2009] FMCA 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNQS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1117

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 414, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
S58 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Applicants: SZNQS & SZNQT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1338 of 2009

Judgment of: Barnes FM

Hearing date: 28 October 2009

Delivered at: Sydney

Delivered on: 28 October 2009

REPRESENTATION

First Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $4,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1338 of 2009

SZNQS & SZNQT

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal dated 29 April 2009 affirming a decision of the delegate of the first respondent not to grant the applicants’ protection visas. 

2. The applicants, who are husband and wife and citizens of India, arrived in Australia in October 2008 and applied for protection visas.  Only the first applicant, the applicant husband, who is referred to for convenience hereafter as the applicant, submitted claims to be a refugee.  His wife applied as a member of his family unit.  The applicant elaborated on his claims in a written letter submitted to the Department in which he made claims about his involvement with the BJP as a well-known primary level worker who had supported a candidate in an election. 

3. The applicant claimed that he became well-known in his area and that this attracted the adverse attention of opposition parties in the Muslim community who tried to “demoralise him” in his business and party activities with “dirty political techniques”.  He also claimed they attempted to assault him and that he travelled overseas to Europe, Singapore, Malaysia and Thailand before returning to India.  He claimed that thereafter he attended party meetings, but that his place of business was attacked and he was attacked on two further occasions and decided to leave India.  He claimed he had been informed that people were looking for him.  His application was refused by a delegate of the first respondent. 

4. The applicant sought review by application lodged with the Tribunal on 16 January 2009.  In that application the applicants provided a post office box address in Griffith as an address for correspondence.  By letter dated 16 February 2009 the Tribunal invited both the applicants to attend a hearing on 18 March 2009 to give evidence and present arguments.  The letter advised the applicants that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, gave details of the date, time and location of the Tribunal hearing and advised the applicants to contact the Tribunal immediately if they were unable to attend the hearing on that date, advising that if they fail to attend the Tribunal it may make a decision without taking further action to allow or enable them to appear before it.  The Tribunal also provided a direct contact phone number, the Tribunal national inquiry line number and a phone number for language assistance. 

5. On 9 March 2009 the Tribunal received a completed response to hearing invitation form dated 5 March 2009 in which it was stated that both applicants would take part in the Tribunal hearing scheduled for 18 March 2009. However neither applicant attended the Tribunal hearing. The Tribunal recorded that they did not contact the Tribunal to explain their failure to attend. In those circumstances pursuant to s.426A of the Migration Act 1958 (Cth) the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

6. The Tribunal noted that the applicants had provided no further material or information to it.  It found that the applicant had provided only a very vague outline of his claims, lacking in crucial details.  Although he claimed he joined the BJP as a primary level worker, he had given no details of the nature of his involvement, particularly in elections, and the basis on which he claimed to have become well-known.  The Tribunal also found that the applicant gave only a very vague outline of the circumstances of the claimed threats and attacks and targeting of his business.  It also referred to an absence of detail in relation to the timing of the claimed incidents or of the circumstances of the applicant’s dealing with the police in relation to such incidents. 

7. The Tribunal referred to the fact that the applicants had not attended the hearing or provided further material or information and concluded that given the scant details provided by the first-named applicant regarding his claims, it was not satisfied on the evidence before it that there was a real chance that the first-named applicant would be persecuted for a Convention reason if he were to return to India now or in the reasonably foreseeable future.  The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.  The fate of the wife’s application depended on that of her husband and as he did not satisfy the criteria the Tribunal found that it followed that she could not do so either. 

8. The applicant sought review by application filed in this court on 3 June 2009.  There are a number of grounds in the application.  The applicant did not file written submissions.  He was given an opportunity in oral submissions to address the grounds in his application.  He did not do so but raised two issues which I will consider. 

9. First, the applicant attempted to put before the court a copy of a certificate in support of his claims about his activities in India dated after the date of his application for judicial review.  He confirmed that no such document was before the Department or the Tribunal.  Such a document was not relevant to the determination of whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.  Insofar as it might be taken from the applicant’s attempt to raise this issue that he sought merits review, merits review is not available in this court. 

10. In submissions in reply the applicant also claimed that he had wanted to attend the Tribunal hearing and that “they” left home early but the car broke down. He could not get transport to Sydney and could not attend the hearing and did not inform the Tribunal of this as he could not speak English. This was the first time at which such claim was raised in these proceeding. There is no evidence to support the applicant’s claims about what occurred on that day. However, assuming for present purposes that his claims are correct, I note that, as he told the court, he did not inform the Tribunal of any difficulties. As set out above, in both the hearing invitation letter and the letter acknowledging the review application the Tribunal provided the applicant with a contact number for assistance in his language. What occurred to him is not such as to establish that the Tribunal failed to meet its obligations to invite the applicants to a hearing in accordance with s.425 of the Migration Act.

11. Before I deal with the grounds in the application, the first respondent also addressed the issue of whether the Tribunal met its obligations to invite the applicants to a hearing to give evidence and present arguments in relation to the issues arising in relation to the decision under review. I accept the submissions of the first respondent that by the letter dated 16 February 2009 the Tribunal validly invited both applicants to attend a hearing on 18 March 2009. The letter satisfied the applicable criteria under the Migration Act and Regulations. It was correctly addressed and sent to the postal address included in the applicants’ application for review as their address for correspondence. It contained an invitation to the applicants to appear before it to give evidence, with notice of the specified day, time and place for hearing (see s.452A(1) of the Act).

12. Having regard to the affidavit of Megan Louise Palmer sworn and filed on 19 June 2009 and the attached extract from the registered post records of the Tribunal, I am satisfied that the invitation was given to the applicants by one of the means specified in s.441A of the Act, that is, by registered prepaid post and that it was dispatched on 16 April 2009, that is within three working days of the date of the letter (see s.441A(4)). The Tribunal provided a period of time which met the requirements of reg.4.35D of the Migration Regulations 1994 (Cth) and the prescribed period of 14 days, having regard to s.441C(4) of the Act.

13. The invitation also contained a statement of the effect of s.426A of the Act. In particular it advised the applicants that if they failed to appear at the date, time and place scheduled the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before it (see s.425A(4)). Accordingly, the invitation complied with the statutory requirements contained in ss.425 and 425A of the Act and reg.4.35D.

14. It is apparent from the Tribunal reasons for decision that it considered these circumstances and decided, pursuant to s.426A of the Act, to make a decision without taking further action to enable the applicants to appear before it as it was entitled to do. No jurisdictional error is apparent in relation the Tribunal’s obligation to comply with the requirements of the Migration Act and Regulations in relation to a hearing invitation.

15. The grounds in the application did not address this issue.  The first ground in the application is that the Tribunal failed to accord procedural fairness to the applicant on two bases.  First, it is said that it failed to carry out its role in an inquisitorial manner when it made a contrary finding and second, because of the weight it was said to have given to the applicants’ claims. 

16. The particulars to this ground refer to the findings of the Tribunal that the applicant provided only a vague outline of his claims lacking in crucial details and no details of the nature of his involvement in elections and the basis on upon he claimed he became well-known; as well as the findings that he gave only a vague outline of the circumstances of being threatened or attacked and in which his business was targeted.  The particulars in relation to the weight given to claims refer to the Tribunal findings that no further material or information was provided with the review application and the fact that the applicant provided no details of when incidents occurred and of the circumstances of his dealings with the police. 

17. It was contended that the Tribunal erred in not assessing the applicants’ claims in the manner required under s.414 of the Migration Act, thus giving rise to a breach of a statutory provision of the Migration Act.

18. However this ground is not made out. Insofar as this ground seeks merits review, merits review is not available in this court. As the High Court recognised in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6, in determining whether an applicant has a well-founded fear of persecution the Tribunal may have to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events. As the sole arbiter of the facts, it is for the Tribunal to identify the material it finds relevant to its reasoning and to give it appropriate weight (Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297). The Tribunal has not been shown to have failed to carry out the review required under s.414 of the Act. The basis for its decision was its inability, in light of the limited nature of the evidence before it and the failure of the applicants to attend the hearing, to be satisfied that the applicant satisfied the criteria in the Migration Act for the grant of a protection visa. It is well established that it is for an applicant to put before the Tribunal material in support of his claim and for the Tribunal to assess such material and determine whether, on the material before it, it is satisfied that the applicant meets the criteria for the class of visa for which he has applied.

19. In this case it has not been established that the Tribunal failed to carry out its role in an inquisitorial manner or that it erred in the weight it gave to claims of the applicant. No jurisdictional error is established because the material put forward by the applicant did not lead the Tribunal to reach the state of satisfaction required under the Migration Act.

20. Insofar as this might be taken as a contention that the Tribunal in some other way failed to comply with its obligations under the Act and Regulations, as indicated above, there was no failure by the Tribunal to validly invite the applicants to attend a hearing. It was entitled to proceed to make its decision in the absence of the applicants in accordance with s.426A of the Act as it did.

21. As stated in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] the Tribunal’s rejection of the application was the inevitable consequence of the applicant’s non-attendance at the hearing. This ground is not made out.

22. The second ground is that the Tribunal acted in a “manifestly unreasonable” manner because it failed to consider the applicants’ claims and ignored their claims of persecution.  Reference is made to the Tribunal’s conclusion about its lack of satisfaction on the evidence that there was a real chance that the applicant would be persecuted for a Convention reason.  It is said that the Tribunal “ignoring the aspect of persecution or serious harm in terms of Sec. 91R of the Act”. 

23. It has not been established that the Tribunal acted in an unreasonable manner, let alone a manifestly unreasonable manner, or in such a way that gave rise to jurisdictional error. Nor is there any lack of reason in the sense of a lack of logic in the Tribunal’s reasoning in this regard. Insofar as this might be taken to be a contention that the Tribunal was under an obligation to investigate the applicants’ claims further, it is under no such obligation (see NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300). Given that it was not satisfied of the validity of the applicants’ claims, it was not necessary for it to go on to determine whether, if it had been satisfied, the claims which the applicant made would have been claims which gave rise to a well-founded fear of serious harm of constituting persecution within s.91R of the Act.

24. The Tribunal was not obliged to accept the applicant’s claims at face value and, as submitted by the first respondent, consistent with the approach taken in S58 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492; [2004] FCAFC 283, by not attending the hearing, the applicants are taken to have assumed the risk that any omissions, inconsistencies or unsatisfactory features of their documents or claims or evidence would be noted by the Tribunal, without them having an opportunity to expand upon or clarify them. It was not unreasonable for the Tribunal to proceed in the manner that it did on the material before it.

25. Ground three is that the Tribunal erred in failing to request more information regarding the applicant’s persecution for his involvement in the BJP, in particular in relation to his claims of persecution by the opposition and Muslims.  It is well established that the Tribunal is not under a general duty to make further inquiries (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992) and this is not one of those exceptional cases in which an obligation to inquire or to obtain readily available further information arose. This ground is not made out.

26. The first respondent’s submissions also considered the possibility that the reference in what is headed, ground 4 “Particulars of FRAUD or BAD FAITH if alleged … NONE”, might nonetheless be intended to make an allegation of bias, notwithstanding the absence of any particularisation and the requirement that bias, a serious allegation, be firmly and distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).

27. It is a rare and exceptional case in which bias would be established on the decision of the Tribunal alone. In this case the applicants did not attend the Tribunal hearing and there is nothing in the material before the court to provide any foundation for a claim either that the Tribunal approached the matter with a closed mind, or that the circumstances are such as to establish apprehended bias from the perception of the appropriately informed lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Nor is there anything to support any claim that the Tribunal did not conduct its review in good faith.

28. As no jurisdictional error has been established, the application must be dismissed.  Before I make the orders, I will hear submissions in relation to costs.

    RECORDED  :  NOT TRANSCRIBED

29. The applicants have been unsuccessful and the Minister seeks costs in the sum of $4,100.  The applicant husband, who also appeared for his wife, told the court that they did not have enough money and he was only doing farming work.  However, the applicants’ lack of funds is not a reason, in the circumstances of this case, for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 November 2009