SZOOK v Minister for Immigration

Case •

[2010] FMCA 923

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOK v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 923
MIGRATION – VISA – Protection (Class XA) Visa – application for review of Refugee Review Tribunal Decision – citizen of India – claim of well founded fear of persecution on the ground of religion – applicant a Sikh – claim of fear of persecution by Hindu extremists – where applicant did not attend Tribunal hearing – no jurisdictional error.
Migration Act 1958 (Cth), ss.426A, 425, 425A, 476
SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
NAVX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 287
Applicant: SZOOK
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1479 of 2010
Judgment of: Scarlett FM
Hearing date: 16 November 2010
Date of Last Submission: 16 November 2010
Delivered at: Sydney
Delivered on: 16 November 2010

REPRESENTATION

Applicant: Appeared in person
Solicitor for the Respondent: Ms Whittemore
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00. 

  3. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1479 of 2010

SZOOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The Applicant is a citizen of India. He is applying to the Court for judicial review of a decision of the Refugee Review Tribunal that was made on 21st July 2010.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.

  2. The Applicant arrived in Australia on 12th November 2009. On 21st December 2009, the Applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. The application was accompanied by a typed statement, in which he set out why it was that he feared persecution in his home country.

  3. In that statement, he set out that he belonged to a very religious family in India and that his father and other members of the family are extremist Sikhs.  He stated the traditions of their religion are to teach Sikhism in its real forms and they believe that their religion has been misinterpreted and, accordingly, they are committed to teach people in a way that they can understand the religion.  He set out in the statement how he had been involved in a severe clash with the Hindu Shiv Sena party and his father was arrested and remained in custody for a long period of time. He stated that his uncle was shot dead by the Indian security forces on the instigation of Hindu extremists.

  4. He also claimed that other close relatives were done to death by Hindu extremists. He himself stated that he was a student and had been involved in a lot of clashes with the Hindu Student Federation.  He was an activist in his college and people in the Hindu Student Federation wanted to take his life. He received many threats that he would be killed.  He stated that attempts had been made to raid his house to get to him, but he survived and he reported the matter to the authorities.  However, this was unsuccessful and he remains in fear of his life at the hands of the Hindu Extremist Student Federation.

  5. He went on to say that he had been given a warning by the Hindu Student Federation that he would be killed and his name had been placed on a hit list.  Finding no other alternatives, he obtained a visa to enter Australia and he claims that if he is not given protection in Australia, then he fears that he will be killed at the hands of the Hindu student movement.

  6. The Department of Immigration and Citizenship wrote to the Applicant on 22nd February 2010. The Applicant was invited to attend an appointment with an officer of the department on Wednesday 4th March 2010. The letter informed him that an interpreter in the Punjabi language would be present.  The letter included a map, showing the Applicant how to find the office of the Department of Immigration and Citizenship. Unfortunately, the Applicant did not attend the interview with the Minister’s delegate on 4th March 2010.

  7. On 22nd March 2010 the Department wrote to the Applicant, advising him that his application for a Protection (Class XA) visa had been refused.  In its decision record, the Department of Immigration stated:

    The applicant failed to respond to the invitation to an interview.  As a result, it has not been possible to determine the types of activities in which the applicant was involved, the details and dates related to his claims. 

    There has been no opportunity to test the credibility of the claims.  It is considered implausible that an applicant with such serious claims would forgo the opportunity to discuss his case if his claims were genuine.

    Another factor which suggests that the applicant’s claims are not genuine includes the fact that he lived at the same address in India from his birth until he left for Australia.  Had he held a genuine fear of persecution, it is unlikely that he would have remained living at the same house.[1]

    [1] See Court Book at page 49

  8. After his application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  That application was received by the Tribunal on 20th April 2010.  In his application, the Applicant gave an address in a suburb of Sydney as his address for correspondence.  It was the same address that he had given to the Department of Immigration and Citizenship. 

  9. The Tribunal wrote to the Applicant on 21st April 2010, at the address that he had given, acknowledging receipt of his application. The Tribunal wrote again on 4th May 2010 at that same address.  That letter was headed “Invitation to Provide Information.”  The Tribunal invited the Applicant to provide certain information which it set out. The information was:

    Your memory of the dates on which you were searched by members of the Hindu Students Federation; and

    Your memory of when and where the list on which your name appears was published by the Hindu Students Federation.[2]

    [2] See Court Book at page 56

  10. The Applicant replied to the Tribunal’s letter and did so before the deadline of 27th May 2010.  The Applicant forwarded a letter to the Tribunal, dated 24th May 2010, which appears to have been received by the Tribunal on the afternoon of 27th May.  In that letter, the Applicant submitted that his house had been searched by members of a particular Hindu political party and that he underwent torture and trauma, coupled with other persecutions.

  11. On 9th June 2010, the Tribunal wrote to the Applicant again.  That letter is set out on pages 60 and 61 of the Court Book.  The letter invited the Applicant to appear before the Tribunal at a hearing, to give evidence and present arguments relating to the issues arising in his case. The letter advised the Applicant that the hearing was set for 11:30am on 20th July 2010 and informed him that an interpreter would be provided in the Punjabi language.  The letter advised the Applicant that, if he failed to attend the scheduled hearing, the Tribunal may make a decision, without taking any further action, to allow or enable him to appear before it.

  12. On 17th June 2010 the Tribunal wrote to the Applicant again.  It advised him that there had been an error in the scheduling of the hearing and that a new hearing date and time had been provided. That letter informed the Applicant that the hearing was now scheduled for 11:30am on 19th July 2010.  The letter went on to advise the Applicant:

    The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.  Please note if you fail to attend the scheduled hearing the Tribunal may make a decision without taking any further action, to allow or enable you to appear before it.[3]

    [3] See Court Book at page 62.

  13. The Applicant did not attend the hearing on 19th July 2010. The Tribunal went on to decide the application in the Applicant’s absence, as it had power to do under the provisions of section 426A of the Migration Act.

  14. In its decision record, the Tribunal summarised the Applicant’s claims of evidence and noted that the Tribunal had sought additional information, which had been provided by the letter of 27th May 2010.  The Tribunal went on to note that the Applicant was advised by letter of 9th June 2010 that the Tribunal was unable to make a favourable decision on the material before it and the Applicant was offered an opportunity to attend the hearing.  The Tribunal noted that the hearing was rescheduled to 19th July 2010 and that the Applicant did not attend.

  15. The Tribunal considered information about circumstances in India, where there was a Sikh movement associated with the idea of an independent Sikh homeland, commonly referred to as Khalistan.  The Tribunal also referred to a publication from the United States Department of State, called “Country Reports on Human Rights Practices,” published on 11th March 2010. 

Tribunal’s findings and reasons

  1. In its findings and reasons the Tribunal set out that it was appropriate to make a decision in relation to the application.  The Tribunal said:

    The applicant was invited to attend the Tribunal for a hearing but did not attend. He has not further contacted the Tribunal to advise of reasons for his non-attendance or requesting another opportunity to appear.  He also did not attend an interview to which he was invited with the Department at which he could have provided information about his claims.[4]

    [4] See Court Book at page 72 at [29].

  2. The Tribunal found the Applicant was a national of India and assessed his claims against that country. The Tribunal was critical of the material supplied by the Applicant in support of his case, noting that it was very scant and lacked details as to the harm which he claimed to have experienced.  The Tribunal went on to find that the evidence was too general in nature and lacking in detail, as to claimed past events, to be seen as reliable.  The Tribunal noted that the Applicant did not take an opportunity to provide further details.

  3. On the evidence before it, the Tribunal was not satisfied that the Applicant was a person who had a real chance of experiencing harm, for any reason should he return to India, either at the present or in the foreseeable future and the Tribunal found that the Applicant was not a person to whom Australia owes protection obligations under the Refugees Convention. The Tribunal noted that the Applicant had not claimed to be a member of the same family unit of a person who is owed protection obligation. The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.

Application for judicial review

  1. The Applicant has sought a judicial review of this decision by filing an application and an affidavit on 12th August 2010.  He filed an amended application on 20th October 2010, although it can be seen that, whilst the document is headed “Amended Application”, it is in effect a written outline of submissions.  The Minister for Immigration and Citizenship, the First Respondent, opposes the application for judicial review in a response filed on 27th August 2010.  The Minister’s solicitors have also filed a written outline of submissions. 

  2. The Applicant attended the hearing of the application for judicial review. He was not legally represented, but he was assisted by an interpreter in the Punjabi language.

  3. The Court noted that the Applicant sought an order setting aside the decision of the Refugee Review Tribunal. The Court noted that the Applicant relied on three grounds.

  4. First, that he had a real fear of being killed, due to growing tensions between the communities of Sikhs and Hindus in India and, as such, the Applicant claimed that his case was not dealt with in accordance with the law and procedure, that there had been an error of law and the proper law was not applied.  The Applicant claimed there had been a mistake of law, which was a jurisdictional and legal error.

  5. The second ground claimed that the Refugee Review Tribunal failed to consider the evidence which the Applicant placed on the file and that there was a legal and jurisdictional error in the decision.  The Applicant had completed all the requirements of being a refugee.

  6. The Applicant’s third ground claimed that the various legal issues were left unaddressed and, as such, the Court has the power to overturn the statement of decision made by the Tribunal. However, the amount of tensions and sectarian violence is admitted.

  7. The Applicant was informed that, whilst the Court had the power to make an order quashing the Refugee Review Tribunal’s decision.  In order to do so, the Court must be satisfied that the decision was affected by jurisdictional error.

Submissions

  1. The Court considered the document headed “Amended Application” of the applicant, which was, as I said, in the nature of a submission.  That document, a typed document of two and a half pages, sets out the Applicant’s claims for a protection visa.  The Applicant claimed in this document that he was persecuted for the reason of his being from the Sikh religion. It refers a severe clash with another Hindu-based political party and the applicant noted that his father had been arrested and that his uncle had been shot dead by the authorities.

  2. The Applicant’s submission went on to cover the various factual matters on which the Applicant relies, all of which go to the merits of his claim for refugee status. Unfortunately, this document seeks a review of the merits of the Applicant’s claim for a protection visa.  Merits review is not available on judicial review. The Applicant was offered the opportunity to make submissions on the grounds set out in his application. He conceded that he had not attended the Tribunal hearing, his explanation being, “I just missed out.”

  3. The Applicant was offered the opportunity to elaborate on the grounds set out in the application and was asked about each of the three grounds individually.  The Applicant was not able to give any answer at all when asked about the first two grounds.  Initially, when asked about the claim in his ground that the legal issues had been unaddressed, the Applicant declined to reply and then told the Court that he had applied for a Medicare card and that Medicare needed a letter from the Department of Immigration and Citizenship.  He said that he needed a new letter issued by the Department in order to deal with Medicare.

  4. I have had the opportunity of reading the written outline of submissions, filed by the solicitor’s acting for the Minister for Immigration and Citizenship.  I have also had the opportunity of hearing an oral submission from Ms Whittemore, solicitor, who appeared the Minister today.

  5. Ms Whittemore noted that the Applicant had not elaborated on his claims and indicated that there was not much to add, but set out why it was that the Tribunal’s invitation to hearing sent to Applicant complied with the requirements of section 425 and 425A of the Migration Act. She told the Court that the Applicant had nominated an address for service of correspondence and that the invitation to hearing was sent to that address. She noted that invitation gave the Applicant ample time to attend the hearing, certainly considerably more than the prescribed period of 14 days. She noted that the Applicant did not respond to the invitation to hearing, nor did he attend the hearing.

  6. Further, it was noted that the invitation to hearing complied with the requirements of section 426A of the Migration Act, setting out what could happen if the Applicant did not attend. It was put that the Tribunal did consider the Applicant’s claim, but found that the material before it was too scant and lacking in detail.

  7. It was further submitted that, because the Applicant did not attend the Tribunal hearing, the Tribunal was unable to obtain any more details of the Applicant’s claim and that the Tribunal had concluded that, in the light of the lack of details, without the opportunity to explore the Applicant’s claims in detail, it could not be satisfied that the Applicant was at risk of persecution.

  8. Further, it was put that in respect of the Applicant’s first ground, which alleged that the Tribunal failed to deal with the Applicant’s case in accordance with the law, that the Tribunal had considered the Applicant’s claims in his protection visa application, but, as the Applicant had failed to attend the delegate interview or the Tribunal hearing and did not provide any further information to the Department or the Tribunal, the information that the Tribunal had was the only information about the Applicant’s claims. The Tribunal considered those claims, but, in the absence of elaboration, could not be satisfied as to the veracity.

  9. As to the second ground, which alleged that the Tribunal failed to consider the evidence placed on the file, it was submitted that the Tribunal’s decision did cover the material filed by the Applicant, but the Tribunal was unable to be satisfied that the Applicant was a refugee.

  10. As to the third ground, which alleged that various legal issues were left unaddressed, it was submitted that the Applicant did not identify what he meant by that and, in the absence of any particulars, the ground was meaningless.

  11. It was submitted that the Tribunal’s power to proceed under section 426A(1) of the Migration Act is available, even if circumstances were shown which would otherwise show a failure for procedural fairness, although it is not accepted that any such failure was made in this case. It was submitted that the invitation to the hearing was a valid invitation and, as the Applicant failed to attend the hearing, there was no error in the Tribunal proceeding to make its decision in his absence, in accordance with section 426A of the Migration Act.

  12. Further, the Tribunal’s rejection of the application was the inevitable consequence of his non-attendance at the hearing. There was nothing in the material that suggested any basis for inferring or concluding that the Tribunal exercised its power under section 426A of the Migration Act capriciously or unreasonably.

  13. In reply to the submissions made on behalf of the First Respondent, Minister for Immigration, the Applicant told the Court that he would like to attend the Refugee Review Tribunal hearing again.

Conclusion

  1. As was made clear to the Applicant at the commencement of the hearing, the Court can only set aside the decision of the Refugee Review Tribunal if the Court is satisfied that the decision was affected by jurisdictional error.

  2. This is a case where the Applicant was invited to attend a hearing of the Tribunal, but for some reason elected not to do so. I am satisfied that the invitation to the hearing was a valid invitation under the various provisions of the Migration Act. It was addressed to the address for service of correspondence that the Applicant provided and sent to that address. It complied with the requirement of section 425 of the Act by inviting the Applicant to appear before it to give evidence. As required under section 425A of the Act, the letter advised the day, the time and the place of the hearing. The invitation was given to the Applicant by one of the means specified in section 441A of the Migration Act, namely by registered, prepaid post (see subsection 441A(4) of the Act).

  3. The invitation was dispatched on 10th June 2010, which was within three working days of the date of the letter. The period of time given to the Applicant was at least the prescribed period of 14 days, as set out in Regulation 4.3.5D of the Migration Regulations. The letter complied with the requirement of subsection 424A(4) of the Act by containing a statement of the effect of section 426A, namely the options available to the tribunal if the applicant failed to appear before it. So I am satisfied the information complied with the statutory requirements in respect of Tribunal invitations to hearing.

  1. The Applicant gave no explanation as to why he did not attend the hearing, except to say that he just missed it.  There is no evidence the Applicant contacted the Tribunal to advise them that through some error or misapprehension he had missed out on the hearing and sought another hearing. He just did not attend.

  2. It is well established that where the Tribunal has already decided that the information before it is insufficient to allow it to make a decision in the Applicant’s favour and the Applicant has failed to take advantage of the opportunity to attend a hearing will lead, if not to an inevitable rejection, at the very least to a likely rejection of the application (See SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs[5] and SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs[6]. See also NAVX v Minister for Immigration and Multicultural Affairs[7].)

    [5] [2005] FCA 1811

    [6] [2005] FCA 1306

    [7] [2004] FCAFC 287 at [5]

  3. The Tribunal rejected the Applicant’s application because there was insufficient evidence to grant it. I am satisfied that no jurisdictional error is disclosed.

Costs

  1. There is an application for costs on behalf of the First Respondent, the Minister for Immigration and Citizenship. The Applicant has been wholly unsuccessful in his claim. He has told the Court that that he has no job and he cannot afford to pay the amount of legal costs claimed. That may well be the case and I see no reason to disbelieve him. Inability to pay is not, of itself, a reason not to make an order for costs, but it may well be a reason for allowing time to pay. If the Applicant is not allowed time to pay, he would have to meet the costs under the Federal Magistrates Court Rules within 28 days. I propose to allow time to pay.

  2. The application will be removed from the list of cases awaiting finalisation.

  3. I wish to thank our interpreter in the Punjabi language for his assistance to the Court.  I have said before that the Court relies very heavily on the professionalism of the interpreters who appear so regularly in this Court and the Court would be unable to perform its functions without the services of interpreters.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  30 November 2010


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