SZOJE v Minister for Immigration
[2010] FMCA 551
•19 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 551 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant failed to attend Tribunal hearing – whether Tribunal erred by proceeding to a decision without having had a hearing. |
| Migration Act 1958, ss.65, 425, 425A, 426A, 441A, 441C, 474 Migration Regulations 1994, reg.4.35D |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | SZOJE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 873 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 July 2010 |
| Date of Last Submission: | 19 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Pursuant to rule 44.12 of the Rules of Court the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 873 of 2010
| SZOJE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was an active member of the All India Sikh Student Federation and the Shiromani Akali Party. He claims that he was arrested and detained by the authorities as a result of his involvement in these organisations. He claims that he will be killed if he returns to India.
The applicant claims to fear persecution in India because of his religion and political opinion.
After his arrival in Australia on 16 March 2008, the applicant lodged an application for a protection visa on 13 November 2009. This was refused by a delegate of the first respondent (“Minister”) on 24 January 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The matter is before the Court today on the applicant’s application that the respondents show cause why relief should not be granted to him. If the applicant were to demonstrate that the respondents should show cause then the matter may proceed further than this hearing today. However, at a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court if the applicant does not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 70 – 71). I now summarise relevant factual allegations.
The applicant made the following claims in a statement attached to his protection visa application:
a)he is a Sikh;
b)Sikhs in India are victimised by Hindu extremists, Indian authorities and the army;
c)he was an active member of the All India Sikh Student Federation and the Shiromani Akali Party. He was also a supporter of the Khalistan movement. He held meetings in his home area, made speeches and campaigned;
d)he became a member of the party’s central committee and worked actively in this role, recruiting young people and creating a Punjab-wide student wing;
e)he was followed and interrogated by security agencies many times. He was also arrested and detained for three months, tortured and accused of having links with the Pakistani ISI;
f)he was released only after he promised not to engage in any political activity but, after his release, he did so anyway;
g)after the general elections, the authorities “again” turned on him. The police arrested and assaulted him, filed a case against him (which was later dismissed) and continuously harassed him. He and his parents received death threats; and
h)he came to Australia on a student visa to flee persecution and fears that he will be killed in India if he returns.
The Tribunal’s decision and reasons
On 25 February 2010 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 24 March 2010 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing the Tribunal might make a decision on his application without further notice. No response was received from the applicant and he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s statement contained a number of vague and unsubstantiated assertions. Amongst the matters about which the Tribunal had insufficient information were:
i)information about the applicant’s claimed involvement and profile in promoting Sikh rights;
ii)particulars and a clear chronology of the persecution that he claimed that he and his family suffered;
iii)details of the consequences of such harm for the applicant and his family; and
iv)his fears regarding his return to India; and
b)based on the limited evidence before it, and without further details and clarification, the Tribunal was not satisfied that the applicant had the political profile he claimed or that he faced a real chance of Convention related persecution for the reasons he alleged.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.That the applicant has satisfied criterion as required by the law laid down by the UNHCR, the applicant has fulfilled the key elements of being a refugee, the RRT has failed to address the legal issues, as such there is a error of law.
2.That the RRT failed to consider the evidence which the applicant placed on the file, there is a legal and jurisdictional error in the decision.
In his affidavit filed on 21 April 2010, in support of the application filed on that day, the applicant also stated:
That the learned member of the RRT did not considered the country information’s, and based his judgment on the grounds which are not applicable in this case in hand. The applicants is undergoing lot of persecution in his country. The deponents matter was not dealt in accordance with the law. The deponent is Sikh, and is suffering a lot by the hands of the authorities in his country of origin, the applicants matter was not considered on the grounds that the Sikhs in India are suffering a lot by the hands of the authorities. There was a clear breach of the law applicable for the time being in force. If the learned RRT made the decision than in that case it was necessary to go in to the country situation where there are so many peoples are discriminated in the manner in which the applicant has undergone. The applicants state of persecution was not taken into account, moreover the country information’s were not taken only to the extent which suits the decision makers of the primary stage i.e. the ministers delegate.
The applicant has also filed a document entitled “amended application on behalf of the applicant” which, notwithstanding that title, is in reality a set of written submissions which not only address the allegations which the applicant made in his application commencing these proceedings but also raise a small number of additional points.
Tribunal’s decision to proceed without a hearing
Before considering the matters alleged in the application and in the document headed “amended application on behalf of the applicant”, it is necessary to consider whether any error is disclosed by reason of the fact that the Tribunal proceeded to make its decision without a hearing. In this connection, certain aspects of the statutory regime under which the Tribunal operated should be considered.
Section 425 provides that if the Tribunal cannot reach a decision favourable to an applicant on the evidence it has, it must invite that applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425A provides for a procedural process relating to the Tribunal’s obligations under s.425. In particular, it states:
425A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.
The only evidence before the Court today relevant to the question of whether the Tribunal could or should have proceeded to reach the decision without a hearing is the Court Book, which is exhibit A, and the affidavit of Katherine Nicole Hooper affirmed 31 May 2010.
The copy of the s.425A notice reproduced at CB 59-60 shows that it was addressed to the applicant at the address which he had given to the Tribunal and was dated 25 February 2010, a matter which is demonstrated by the copy of the application for review lodged with the Tribunal reproduced at CB 54-57. A copy of a registered post sticker displaying the number 559928892018 appears on the copy of that letter. Annexed to Ms Hooper’s affidavit is a redacted copy of the Tribunal’s record of certain registered postings on 25 February 2010. Relevantly, it records that a letter, addressed to the applicant at the address he had provided to the Tribunal and with a registered post reference number 559928892018, was posted on that day.
The copy of the letter reproduced at CB 59-60 and the affidavit of Ms Hooper satisfy me that the s.425A letter was sent to the applicant on 25 February 2010. As already observed, that letter invited the applicant to a hearing on 24 March 2010.
In relation to the dispatch of a s.425A notice, s.441A(4) provides:
441A Methods by which Tribunal gives documents to a person other than the Secretary
…
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.
By dispatching a s.425A letter on 25 February 2010 to the address given by the applicant in his application to the Tribunal, the Tribunal satisfied the requirements of s.441A(4).
Section 441C(4) provides:
441C When a person other than the Secretary is taken to have received a document from the Tribunal
…
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Because the Tribunal complied with s.441A(4), the notice is taken to have been received by the applicant seven working days after the date which it bears, namely 4 March 2010.
When an applicant is invited to a Tribunal hearing, reg.4.35D of the Migration Regulations 1994 deals with the length of notice which an applicant is to receive of that forthcoming hearing. It provides:
4.35D Prescribed periods — notice to appear before Tribunal (Act, s 425A)
For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
As I have said, the s.425A letter invited the applicant to a hearing on 24 March 2010. The applicant was not in detention so he had to receive notice of the Tribunal hearing no later than 9 March 2010. As the letter is deemed to have been received on 4 March 2010, the requirements of reg.4.35D were met.
It should also be noted, as the Tribunal recorded in para.29 of its decision, that neither of the two letters which the Tribunal had sent to the applicant prior to the listed hearing date had been returned to it. Both of those letters were addressed to the applicant at the address he had given in his review application. It might therefore be inferred that both of those letters had been delivered.
Section 426A(1) provides:
426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
The Tribunal discharged its obligation to invite the applicant to a hearing. Further, no miscarriage of discretion has been identified which would lead me to conclude that its decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it was affected with error.
I now turn to the various matters raised by the applicant in these proceedings.
Applicant satisfied Convention criteria
The first element of the first ground of the application invites the Court to reconsider the Tribunal’s conclusion on the merits of the application which was before it. The Court is not empowered to do this. As has been explained earlier in these reasons, the Court cannot rehear the applicant’s application for a protection visa; its role is to determine whether the Tribunal’s decision is affected by jurisdictional error.
The applicant’s oral submissions today and the matters which he raised in the first six paragraphs of the “amended application on behalf of the applicant” traversed numerous factual issues going to his claim to be entitled to a protection visa. The Court is unable to take any of these matters into account because they go to the correctness of the Tribunal’s decision on the merits of the application not to whether its decision is affected by jurisdictional error. Consequently, the first issue raised by the first ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Tribunal failed to address legal issues
The second element of the first ground pleaded in the application alleges that the Tribunal “has failed to address the legal issues”. The Tribunal summarised the relevant law at pp.2-4 of its decision. That summary was not erroneous and, in particular, observed at para.5 that a visa is not to be granted unless the decision-maker is satisfied that the criteria for the grant of such a visa have been met. Here, the Tribunal correctly identified the criteria it was required to apply when determining whether it was so satisfied and concluded, given the lack of evidence before it and the applicant’s failure to attend its hearing, that it was not satisfied that the applicant met those criteria.
The Tribunal correctly addressed the legal issues which were raised by the review application which was before it. In particular, the Tribunal advised the applicant in the s.425A notice that it was not in a position to make a decision in his favour based on the material it then had. In its decision the Tribunal set out a number of matters on which it needed further information from the applicant but on which it was unable to obtain clarification because the applicant failed to attend its hearing. Without additional information addressing the issues which the Tribunal identified in its decision, the Tribunal found itself unable to be satisfied, as required by s.65 of the Act, that the applicant was a person to whom Australia had protection obligations.
By failing to attend the Tribunal hearing the applicant denied himself the opportunity to provide the evidence and arguments which might have led the Tribunal to the satisfaction required by the statute. Similarly, he denied the Tribunal the opportunity to receive such evidence and arguments. Because the Tribunal was unable to reach the level of satisfaction required by the Act, it reached the decision which it did. However, in doing so, as I have already said, it correctly identified the criteria which it was required to apply, together with the statutory obligation imposed by s.65 which it had no alternative but to observe.
Tribunal failed to consider the evidence
The second ground pleaded in the application suggests that there was more evidence before the Tribunal than, in fact, there was. The only evidence before the Tribunal was what was contained in the applicant’s protection visa application form and the statement which accompanied it. In its decision the Tribunal referred to this evidence but wanted more before it would accept the accuracy and genuineness of what was contained in those documents.
On the facts, the applicant’s allegation cannot be made out. The matter is that the Tribunal considered what evidence there was available to it but the evidence in question was simply insufficient to enable the Tribunal to reach the level of satisfaction required by s.65 of the Act.
Tribunal failed to consider country information
In the second paragraph of his affidavit filed on 21 April 2010 the applicant alleges that the Tribunal did not consider country information. The applicant has not indicated what country information should have been considered by the Tribunal. The applicant has not identified any independent country information which he may have supplied to the Tribunal nor any independent country information which the Tribunal relied on in reaching its decision. This ground fails to acknowledge that the Tribunal’s decision was not based on country information but instead on the paucity of available evidence or information.
Further, the Tribunal has no general duty to make inquiries and, should there have been country information supportive of the applicant’s case, there is nothing in the conduct of these proceedings which suggests, based on recent High Court authority (Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123), that the Tribunal had any obligation to identify, obtain or consider that material.
On p.2 of his written submissions headed “amended application on behalf of the applicant”, the applicant says:
The statement of decision mostly relies upon the country information’s [sic] supplied by the Indian government, no independent country information has been implied, most of the things were taken from the general information’s [sic] which are outdated…
Nothing of the sort alleged in that quotation happened. Nothing in the Tribunal’s decision record supports the allegation that the Tribunal relied on country information supplied to it by the Indian Government, nor has the applicant put any evidence before the Court which otherwise supports the allegation. What the applicant means when he says “no independent country information has been implied” is elusive, particularly given that the Tribunal’s decision was based on paucity of information, not on information which was express or implied or available were researches to have been undertaken.
Similarly, the allegation that “most of the things were taken from the general information’s which are outdated” would, in other circumstances, not point to jurisdictional error because it is a matter for the Tribunal which information it chooses to rely on; it is at liberty to rely on information of whatever age as long as it considers it to have some weight and relevance to its inquiry. However, in this case it simply needs to be said again that the Tribunal’s decision was not based on particular information but on the lack of information.
For these reasons, this ground alleged by the applicant does not disclose jurisdictional error on the Tribunal’s part.
Tribunal based decision on inapplicable grounds
The second element of the allegation contained in the applicant’s affidavit filed on 21 April 2010 suggests that the Tribunal erred in its approach to his review application because it took account of irrelevant considerations or misunderstood the tests which it was required to apply. For the reasons already given, this ground cannot be made out. The Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a protection visa was open to it in the circumstances and represented a correct understanding of the operation of the Act. Consequently, this allegation is not made out.
Bias
The second full paragraph on the third page of the applicant’s “amended application on behalf of the applicant” says that:
… a bare reading of the decision made by the RRT is clear that the member was not impartial in the matters of the Sikhs but instead defends the Indian authorities every where…
Nothing in the Tribunal’s decision record supports a conclusion that the Tribunal had anything other than an open mind in relation to the application which the applicant brought before it or that it had any pre-formed views concerning the political, religious and social situation of Sikhs resident in India or the interaction of the Indian government and its instrumentalities with that cultural and religious group. Nor has the applicant put before the Court any evidence which would support the assertions made in the “amended application”.
An allegation of bias has to be clearly made and proven and it cannot be said that this has occurred on this occasion. There is no basis to conclude that the Tribunal was anything other than impartial concerning the applicant’s claim or that it sought to “defend” the Indian authorities.
Tribunal’s conclusion
The decision reached by the Tribunal on the merits of the application was one which was open to it given the paucity of evidence before it and the applicant’s absence from its hearing. That is to say, the Tribunal’s conclusion concerning its lack of satisfaction was clearly open to it. Once the Tribunal reached that view it had no option but to affirm the delegate’s decision; it was an outcome required by the Act. The Tribunal’s decision on the merits of the applicant’s application is not affected by jurisdictional error.
Conclusion
To conclude, the Tribunal’s decision on the merits of the application was not affected by jurisdictional error; nor was its decision to proceed to a decision on the review application before it. Given this, I must find that the application brought to this Court does not disclose an arguable case for the relief which the applicant seeks.
As I have found that the applicant does not have an arguable case, the respondents will not be called upon to show cause and the proceedings will be dismissed pursuant to r.44.12.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 July 2010