SZOOC v Minister for Immigration
[2010] FMCA 865
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 865 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider s.91R(1) of the Migration Act 1958, failed to consider all the evidence, ignored the rules of natural justices and failed to obtain country information. |
| Migration Act 1958, ss.91R, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294 |
| Applicant: | SZOOC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1680 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 October 2010 |
| Date of Last Submission: | 27 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1680 of 2010
| SZOOC |
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 Hindu Dharam Parchar Party. He claims that, as a result of his activities on behalf of the party, he was targeted by the Khalistan Student Federation (“KSF”). He claims that the KSF will kill him if he returns to India.
The applicant claims to fear persecution in India because of his political opinion.
The applicant lodged an application for a protection visa on 8 December 2009. This was refused by a delegate of the first respondent (“Minister”) on 20 April 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’s 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.
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 and 5 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application:
a)he belonged to the Hindu Dharam Parchar Party, which has links with the BJP and the RSS;
b)he was “the main and the active member” of the party’s student wing. They had many clashes with the KSF;
c)the KSF want to kill him. His name has been placed on their “hit list” and he has received many threats. In order to get him, they also attempted raids on his house many times but he managed to survive. He was forced to move from place to place; and
d)he reported these matters to the authorities but they failed to give him protection.
The Tribunal’s decision and reasons
On 19 May 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 therefore invited the applicant to a hearing on 29 June 2010 to give oral evidence and present arguments in relation to the issues arising in his case.
On 25 June 2010 the Tribunal received a “Response to Hearing Invitation” form from the applicant, indicating that he would not be taking part in the hearing which was scheduled for later that month and, in effect, consented to the Tribunal making a decision on the papers.
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 account of his experiences in India was vague, lacked detail on essential points and was entirely unsubstantiated. In this connection, the Tribunal referred to the following matters:
i)the applicant claimed to have been an activist in college but offered no information as to how he expressed his alleged activism in practice;
ii)the applicant did not explain whether, or in what way, he was involved in the activities of the BJP, the RSS or the Hindu Dharam Parchar Party;
iii)the applicant did not explain why his activities would have aroused the enmity of Sikh extremists such that they wished to kill him;
iv)the applicant claimed to have been placed on a “hit list” by the KSF but had not produced a copy of the list;
v)the applicant claimed that the KSF raided his house “many times” and that “luckily” he survived but offered no other details about these incidents;
vi)the applicant did not explain why, in the face of these continuing attacks and threats, he persisted with his education and chose to take no action to avoid the danger to his life apart from allegedly moving to different places; and
vii)the applicant claimed to have been unsuccessful in obtaining the protection of the authorities but did not explain how or when he sought their assistance; and
b)the applicant having declined to attend a hearing, the only information before the Tribunal was what was contained in the written material before it. That information did not provide a sufficient basis for the Tribunal to be satisfied that the applicant was an activist in support of Hindu political causes or that he was subjected to harm for that or any other reason.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.That the applicant has satisfied the criterion as laid down s.36(2)(a) for protection visa, the respondents did not considered section 91R(1)(c) and section (91R)(1)(b) as such the requirements under the laws were not fulfilled.
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. 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 low caste Hindus.
The applicant also relied on material contained in his affidavit filed with his application on 3 August 2010.
Ground 1 – failure to consider s.91R(1)
Section 91R(1) provides:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
Section 91R(1) limits the circumstances in which the Convention will apply to applicants for protection in Australia. However, before the subsection has any work to do the Tribunal must be satisfied that the applicant does have a well-founded fear of persecution for a Convention reason. Once the Tribunal is satisfied that this is the case then it will be required to apply s.91R(1) before it can be satisfied that an applicant meets the criteria for the grant of a protection visa. In this case, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason because the applicant’s case on the papers was insufficiently convincing and the applicant chose not to attend the Tribunal’s hearing.
For these reasons, the first ground set out in the application does not disclose jurisdictional error on the Tribunal’s part.
Ground 2 – various
The second ground of the application is made up of three issues. The first of these is the allegation that the Tribunal failed to consider evidence supplied by the applicant. However, the Tribunal did consider the information which it had and so much was made clear by its decision record. At para.22 of the decision record the Tribunal quotes the statement which the applicant supplied with his protection visa application. The Tribunal goes on to refer to the passport, copies of which pages the Minister’s department had received from the applicant. It then went on at para.29 to discuss the evidence which was contained in the statement which accompanied the protection visa application form.
Plainly, the Tribunal did consider what it had before it but the difficulty for the applicant in his review application to the Tribunal was that this information was insufficient to satisfy the Tribunal that he met the criteria for the grant of a protection visa. In this regard, the Tribunal said at para.30 of its decision that it would have used the opportunity of the applicant’s attendance at a hearing to ask him about his claims to fear harm in India and to allow him the opportunity to explain how the feared harm engaged the provisions of the Convention but, as he did not attend the Tribunal hearing, this had not been possible. The Tribunal, being denied the opportunity which would have been presented by the applicant’s attendance at its hearing, could only proceed to make its decision on the material which it had and this is what it did. In his regard, para.31 of its decision states:
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 Hindu political causes ... Nor is there any basis to conclude there is a real chance that he would suffer serious harm for this reason in future.
For these reasons, the first element of the second ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
The second element of the second ground of the application is that the Tribunal ignored the laws of natural justice. The rules of natural justice have two limbs: the bias rule and the hearing rule. There is no suggestion that the bias rule is in issue in these proceedings.
As to the hearing rule, in its common law form it has been displaced by the provisions of div.4 of pt.7 of the Act as far as the Tribunal’s reviews are concerned. The applicant has not suggested how any provision of div.4 might have been contravened. Nevertheless, it is appropriate for the Court to address the issue in more detail than has the applicant.
The most important sections found in div.4 of pt.7 are ss.424A and 425. Section 424A has no application here because the decision of the Tribunal was not based on information but was, rather, based on a lack of information. In those circumstances, the obligations found in s.424A(1) were not engaged.
Nevertheless, s.425 did apply and, in discharge of its requirements, the Tribunal invited the applicant to a hearing. Section 425 provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Because the applicant advised in his “Response to Hearing Invitation” form that he declined to take part in the Tribunal’s hearing, he no longer had a right to appear before the Tribunal which was entitled to proceed to make its decision without taking any further action to allow or enable him to appear before it. In this regard, it was said by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294:
It follows that where one of the conditions set out in s 425(2) is satisfied, the entitlement to appear before a tribunal established under s 425(1) either does not come into existence or ceases to exist and the tribunal’s duty to invite the applicant to appear before it is discharged. (at 307 [58])
It is not apparent that any other provisions of div.4 of pt.7 are relevant to the current proceedings. The applicant has not pointed to any and none is apparent.
In the circumstances, I find that the second element of the second ground pleaded in the application does not disclose any basis upon which the Tribunal’s decision should be set aside.
The third element of the second ground of the application was expressed in the following terms:
The respondent admitted in the decision that there is a great discrimination against the low caste Hindus.
Nothing of this sort was mentioned by the Tribunal in its decision. This allegation has no relevance to or link with the decision under review and does not point to any arguable case of jurisdictional error on the Tribunal’s part.
Applicant’s affidavit
In his affidavit filed with his application the applicant, in the second paragraph, essentially makes a number of submissions which need to be considered at this point. The first of these is that the Tribunal did not consider “the country information’s”. In this connection it should be observed that the applicant put no country information before the Tribunal. Further, although the delegate’s decision record suggests that she had some country information before her when making her decision, and para.19 of the Tribunal’s decision states that the Tribunal had before it the department and Tribunal files relating to the applicant together with the material referred to in the delegate’s decision thereby suggesting that the Tribunal also had before it the same information as the delegate had, its decision was not based on country information.
This was a case where the weakness of the case propounded by the applicant was such that the Tribunal simply could not be satisfied that anything that the applicant had put in support of his application for a visa was sufficiently strong that it could be satisfied that the criteria for the grant of a visa were met.
The second matter mentioned in the affidavit was that the Tribunal based its judgment on grounds which were not applicable in this case. Again, it should be stated that the Tribunal did not base its decision on “grounds” in the sense suggested by this assertion. The decision was based on a failure to be satisfied that the applicant’s allegations were made out. In its decision record, the Tribunal pointed to its concerns regarding the applicant’s assertions and it was those things and the applicant’s failure to attend its hearing which led the Tribunal to make the decision which it made.
The next matter found in the applicant’s affidavit is an assertion that the Tribunal failed to consider the applicant’s situation and the “statement of the claim”. The statement lodged with the protection visa application form was specifically considered by the Tribunal as was the applicant’s alleged situation. The difficulty for the applicant was that the evidence he submitted in support of his allegations did not really take his claims much beyond, if anywhere beyond, unsubstantiated assertions. The Tribunal considered the applicant’s situation based on the material which he had provided but was not satisfied, on the limited evidence available to it, that the applicant met the criteria for the grant of a protection visa.
The next matter raised in the affidavit was that it was necessary for the Tribunal to go to country information. In this regard, it should be noted that the Tribunal has no obligation to make inquiries except in exceptional circumstances. Those exceptional circumstances do not apply here. The Tribunal had no duty to make inquiries or, in particular, to obtain country information.
The next matter raised in the applicant’s affidavit is that his state of persecution was not taken into account. This assertion is essentially the same as the assertion made earlier in the affidavit that the Tribunal did not consider the applicant’s situation and claims. However, it is slightly different in that it assumes that the applicant was persecuted. The Tribunal made no such finding and was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The final matter raised in the affidavit was expressed in the following terms:
The country information’s were not taken only to the extent which suits the decision makers of the primary stage ie the Minister’s delegate.
Whatever it might mean, this statement does not disclose jurisdictional error because the Tribunal did not base its decision on country information of any sort.
For these reasons, none of the matters raised by the applicant in his affidavit filed on 3 August 2010 discloses a basis upon which the Tribunal’s decision should be set aside.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 11 November 2010
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