SZOMF v Minister for Immigration
[2010] FMCA 776
•8 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMF v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 776 |
| MIGRATION – Review of decision of RRT – where applicant did not attend hearing. |
| Migration Act 1958 (Cth), s.422B |
| NAVX v Minister for Immigration [2004] FCAFC 287 |
| Applicant: | SZOMF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1365 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 September 2010 |
| Date of Last Submission: | 8 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1365 of 2010
| SZOMF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 11 February 2008 on a Subclass 573 student visa. On 14 December 2009, he applied for a protection (Class XA) visa. On 17 March 2010 a delegate of the Minister refused to grant a protection visa and on 16 April 2010 the applicant applied for review of that decision from the Refugee Review Tribunal. He was invited to a hearing by the Tribunal but he completed the invitation form indicating that he did not wish to attend. The Tribunal considered his written application and on 27 May 2010 determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations is that of the Convention reason of political opinion. In his application for a protection visa he told that he was a Sikh from Amritsar, who had been a long-time supporter of the Khalistan movement, also known as Shiromani Aklai (A). He claimed that members of this party were sought out by the Indian Army, were accused of being associated with the Pakistan intelligence agencies and were followed by Indian intelligence. He said that he was badly treated by the police, he was detained, he was tortured, he was made to sleep on ice blocks, he was deprived of food and water, he was the subject of sleep deprivation and interrogation. He said that he had been deprived of his livelihood and that he became a pauper due to the illegal activities of authorities in India. He said that once he had been arrested he was released by order of the court but he was continually harassed. As a result he had no alternative but to leave India where he felt that he had a chance of being killed by the Indian authorities.
The Tribunal considered these very serious allegations but noted that, although his account of his experience is set out at some length, it considered it to be vague, lacking in detail and entirely unsubstantiated. The Tribunal pointed out at [29] [CB 90]:
“[29]Among other shortcomings of this information, there is no explanation as to how it was that he allegedly became prominent in the structure of the Khalistan movement. He does not explain where or in which brand of these organisations he allegedly rose to the position of a member of the central committee. He does not say when it was that his two arrests occurred. He does not explain when or how frequently he received the alleged threats to his life or why, in the face of these continuing threats, he chose to remain at the same address and did not take action to avoid the danger. He does not explain how, if he had lost his business as a result of his alleged first arrest, so that he was deprived of his livelihood and became a pauper, he was nevertheless able to find a very substantial amount of money required to study in Australia…
[30] I would have used the opportunity of the hearing to ask the applicant about his claims to fear harm in India and allow him the opportunity to explain how the feared harm engaged the provisions of the Convention…
[31] In the present case, the written material does not provide a sufficient basis to be satisfied that the applicant was ever an activist in support of the Khalistan movement, or that he was ever subjected to harm for this or any other reason.”
On 21 June 2010 the applicant filed an application for review of the decision of the Tribunal in this Court. He gave three grounds of application:
“(1)That the applicant’s claim was not addressed in the legal manner, nor the applicant had enough opportunity to be given the documents to prove his claim, the only issue was addressed by the RRT, is that the applicant has not satisfied the criteria as laid down, the applicant did by way of his claim satisfy the criteria as laid down. “
The Tribunal advised the applicant by letter, dated 29 April 2010, that it had considered the papers and was unable to make a favourable decision on that information alone. It offered the applicant an opportunity to attend a hearing. By this time the applicant had already been in Australia for some two years so that he had had a considerable period of time to obtain any further information that was needed. It is the applicant’s responsibility to satisfy the Tribunal of his claims. The Tribunal does not start from the position that every applicant is a refugee unless otherwise proved. The fact that the applicant, in his PVA, indicated facts which could well lead to him being considered to be a refugee, does not mean that the Tribunal was required to so consider him, unless it was satisfied of their truth which, for the reasons it gave, it was not.
“(2) That the RRT failed to consider the evidence as provided by the Human Rights Commission and other bodies such as the US Country Information reports., there is a legal and jurisdictional error in the decision. The laws of natural justice were totally ignored in the present case. The respondent admitted in the decision that there is a great discrimination against the Sikh community all over India.”
I have considered the Tribunal’s decision record and I am unable to find where it has agreed that there is great discrimination against the Sikh community all over India. The Tribunal is also not required to consider independent country information, but even if it does, that information has to be relevant to the claims being made. The Tribunal did not have much of an opportunity to investigate the claims that were being made by the applicant in view of his non-attendance. When the applicant says that the laws of natural justice were totally ignored in the present case he seems to be unaware that the laws of natural justice that apply are those prescribed in s.422B of the Migration Act 1958 (the “Act”), which is an exhaustive statement of the natural justice hearing rule. It behoves the applicant to provide the court with some particulars of which part of s.422B he says was not complied with. He has not done this.
The third claim was that:
“(3)The legal issues, like taking into account the above information, is without jurisdiction and has resulted in the manners which are against the principles of natural justice, hence this legal error.”
I do have some difficulty with understanding what is meant by this claim but it would seem to me to be no more than a repeat of part of the claim made above and the same criticisms of it would apply.
On 11 August 2010 the applicant filed with this court an amended grounds of application. It is clear that the amended grounds are intended to be read with the grounds that I have just discussed. They are almost entirely a history of the applicant’s claims for a protection visa, but he does mention that on page 45 of the Court Book, there is a reference to a number of other applicants who made identical claims to that of this applicant. The note is addressed to the RRT but it was not referred to in the decision. The applicant says that it induced bias against him by the RRT. But bias is a serious allegation that must be strictly proved and, in the absence of any reference to the matter in the decision record, I could not say that it so affected the mind of the Tribunal that it was fixed upon a decision contrary to the applicant that was incapable of change.
When applicants refuse the invitation to a hearing the result is inevitably that their claims are dismissed; NAVX v Minister for Immigration [2004] FCAFC 287, and this is what has occurred here. When the applicant appeared before me today he could say nothing. After Ms Palmer, who appeared for the Minister, had referred the court to her helpful written submissions, the applicant asked the court to allow him to say something about his claims to be a refugee. The court explained to the applicant that it was unable to grant him a visa, that it could not indulge in merits review and that he would have to confine any comments to the manner in which the Tribunal reached its decision. The applicant was unable to do this and so the inevitable consequence of this application is that it must be dismissed and the applicant must pay the First Respondent’s costs which I assess in the sum of $3,500.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 7 October 2010
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