SZOHX v Minister for Immigration
[2010] FMCA 654
•23 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHX v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 654 |
| MIGRATION – RRT decision – Indian applicant claiming caste discrimination – did not attend Tribunal hearing – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.426A, 426A(1), 494C(7) |
| Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592 SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | SZOHX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG743 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 23 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,685.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG743 of 2010
| SZOHX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia on a student visa in May 2009. He returned to India briefly in August and September 2009. On 8 October 2009 he applied for a protection visa, without any apparent assistance. A statement attached to the visa application claimed that he belonged to a low caste in India, being the Harijan caste, also known locally as the Shwoders.
He claimed that he had suffered discrimination throughout his studies in India, and at times had been “very badly bashed by my fellow students” and “discriminated to an extreme degree of intolerance”. However, he said he managed to achieve “brilliant results” and obtained a bachelor degree at the university. He claimed that he discovered, when he returned to India on his recent visit, that the family home had been “taken away from” his father “on the plea that this place is suitable for a man who was a person from upper class Hindu”. In response to the protests of his father and himself, he received threats “that I shall be killed if I raise my voice”. The applicant claimed that he would be further discriminated against if he returned to India, and that he had “great apprehensions of persecution by the people of the high class Hindu’s as I have experienced in past”.
In his protection visa application, the applicant gave an address at Harris Park as his residential and postal address.
A letter sent to that address invited him to an interview with a departmental officer on 14 December 2009. However, the applicant did not attend.
The delegate made a decision on 14 December 2009, refusing the visa application. The delegate said that the applicant had made:
… a number of general and unsubstantiated claims relating to his circumstances in India, however, in failing to attend the interview, I have been unable to test the assertions made by the applicant in regards to his claims and to be satisfied with the veracity of these claims.
The delegate’s letter was posted to the wrong address, and was returned to the Department. However, there is on the file a letter from the applicant identifying this error, and confirming that he received a second copy of the decision on 29 January 2010.
The applicant then applied for a review by the Refugee Review Tribunal on 8 February 2010. Once again, he gave his Harris Park address for receiving correspondence. He did not provide any telephone number nor other means of contacting him.
The Tribunal sent two letters to his address before it made its decision. On 9 February 2010, it sent by registered post an acknowledgement of the application, inviting the applicant to consider providing his written material or arguments to the Tribunal as soon as possible. This letter was not returned to the Tribunal.
On 22 February 2010, it sent the applicant by registered post an invitation to attend a hearing on 18 March 2010. The letter told the applicant that the Tribunal had considered the material, but was unable to make a favourable decision on the information before it. The applicant was invited to appear to give his evidence and present arguments, and was warned that if he failed to attend, the Tribunal might make a decision without taking any further action to allow or enable him to appear before it. This letter was not returned to the Tribunal.
Neither of the letters was responded to by the applicant, and he did not attend the appointed hearing nor otherwise contact the Tribunal.
The Tribunal made a decision on 19 March 2010, affirming the delegate’s decision. In its statement of reasons it identified the claims made by the applicant in his original visa statement, and referred to the procedures followed by the Tribunal.
The Tribunal considered the initial defective notification of the delegate’s decision, but decided that it had jurisdiction in relation to the application for review. In that respect, the Tribunal correctly reasoned that the applicant had actually received the delegate’s decision, and was deemed to have received it at that time pursuant to s.494C(7) of the Migration Act 1958 (Cth). On the authority of SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 at [36] and [69], any defect in the form of the original notification would not have resulted in the Tribunal losing jurisdiction to consider the application for review actually lodged by the applicant.
The Tribunal referred to the absence of the applicant from the appointed hearing, and said:
38.The applicant indicated that all written correspondence was to be sent to his residential address. He has not provided any mobile telephone number or other contact details. He has given no details of an authorised recipient. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the evidence available to it, without taking any further action to enable the applicant to appear before it.
The Tribunal then discussed the claims made by the applicant to fear persecution as a member of a lower caste. It said that the visa statement provided insufficient information for it to consider a number of important matters. It concluded:
44.On the limited evidence before it, and without further details and clarifications, the Tribunal is not satisfied that the applicant is a member of a lower caste, or perceived as such; that he or his family members have suffered any discrimination or other past harm (such as verbal abuse, social rejection, physical assault, property loss and job discrimination); or that he has ever required protection from teachers, State agencies or others from any Convention‑related harm. On the material before it, the Tribunal is not satisfied that the applicant faces a real chance of Convention‑related persecution.
45.The Tribunal is therefore unable to be satisfied that the applicant has a well‑founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to India.
The Tribunal’s letter enclosing its decision was posted to the applicant’s Harris Park address and appears to have been received promptly, since the applicant applied to this Court on 6 April 2010. He again gave that address as his address for receiving mail.
The grounds of review in his original application stated:
1.That the applicant’s case was not decided in accordance with the law, rather the old country information was used. There is a clear violation of the error of law.
2.That the RRT simply cited the old version, but did not gave its own verdict, the claim of the applicant was enough for the purposes of giving the decision on merits. The laws of natural justice were not taken in to the account. There has occurred a question of law as to the refugee law.
Unfortunately, I am unable to find any arguable substance in these grounds, to show jurisdictional error. Unless I can identify jurisdictional error affecting the Tribunal’s decision, I have no power to send the matter back to the Tribunal. I do not have power myself to decide if the applicant is a refugee, and should be permitted to reside in Australia.
In my opinion, the Tribunal did decide the matter in accordance with law. It was expressly authorised by s.426A(1) to proceed to make a decision when the applicant failed to attend an appointed hearing. That hearing appears to me to have been appointed in accordance with all the necessary formalities under the Migration Act and Regulations.
In fact, the Tribunal’s decision did not turn upon “old country information”, but on its inability to be satisfied as to the foundations of the applicant’s personal claims to be a refugee, due to his absence from the hearing.
The applicant has filed an amended application which makes several arguments in a discursive manner. However, I can find no substance in these arguments, and can address them briefly.
I can identify no legal error by the Tribunal, and none is pointed to by the applicant.
The Tribunal, in fact, did consider the evidence given by the applicant to the Department of Immigration, being his visa statement. He did not submit any corroborative documents, and therefore the Tribunal did not ignore any such documents, as is alleged.
There was no failure to follow required procedures on the part of the Tribunal. As I have identified above, the Tribunal’s proceeding to make a decision was fully authorised by s.426A(1). There is nothing in the circumstances shown in the evidence before me which might support an argument that the Tribunal’s discretion not to reschedule a hearing miscarried.
Although the Tribunal did refer to the applicant’s failure to attend an interview with the delegate, I do not consider that this shows it basing its decision upon any irrelevant consideration.
Largely, the applicant’s amended application repeats his refugee claims, with an implicit invitation to the Court to consider them. However, it is not the function of the Court to decide whether he is a refugee. Similarly, I am unable to give a remedy to the applicant based upon his contention made orally today that he cannot return home due to the problems there.
In relation to his non‑attendance at the Tribunal hearing, the applicant claimed in unsworn statements that he had not received the registered post letter appointing the hearing. He conceded that it appears to have been sent to the correct address. He did not suggest how he might have failed to receive the letter.
Whatever the reason for his absence, and assuming that he did not receive actual notice of the appointment, the authorities are clear that the Tribunal’s power to proceed under s.426A(1) is not lost, and its decision is not vitiated, by reason of a notification not being actually received (see VNAA & Anor v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14]‑[15], Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39], NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592, and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17]).
For the above reasons, I have been unable to identify any ground upon which I can send the matter back to the Tribunal. In my opinion, the Tribunal’s decision is a privative clause decision, and I must dismiss the application.
I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 2 September 2010
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