SZOOM v Minister for Immigration
[2010] FMCA 911
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 911 |
| 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 the applicant’s case was not dealt with in accordance with law, the Tribunal did not apply the correct tests, the applicant’s previous experience of persecution was not taken into account and the Tribunal incorrectly relied on independent country information. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 236 ALR 294 |
| Applicant: | SZOOM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1766 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 November 2010 |
| Date of Last Submission: | 11 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 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 $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1766 of 2010
| SZOOM |
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 a strong supporter of the Khalistan movement. He claims that, as a result, he was regarded by the Indian authorities as a Pakistani agent. He claims that he was subsequently arrested and tortured.
The applicant claims to fear persecution in India because of his political opinions.
After his arrival in Australia on 25 June 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 22 March 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.
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. In summary they were as follows:
a)the applicant was a member of the All India Sikh Student Federation. He was also a strong supporter of the Khalistan movement and the Shiromani Akali Dal party;
b)the applicant was a member of the party’s central committee but was not a very active member of the party;
c)the applicant was regarded as a Pakistani agent because of his support for the Khalistan movement. As a consequence, he and his friends were followed by secret Indian agencies. They were arrested by the police and handed over to a special branch consisting of military intelligence officers who detained, interrogated and tortured them;
d)they were arrested again after the publication of political pamphlets naming those who were “involved”, presumably in the detention, interrogation and torture of the applicant and his friends. “False cases” were lodged against them; and
e)the applicant was continually harassed after his release and his parents and friends received threats. He believes that he will be killed in India because of his political opinions.
The Tribunal wrote to the applicant on 29 April 2010 and invited him to provide information about the periods of arrest, interrogation and detention he allegedly experienced while in India. The applicant responded by letter dated 23 May 2010 and claimed that he had been detained many times. He claimed that he had been blindfolded so he did not know where he had been taken. He also claimed that he had a poor memory of the dates of his detention, although he was held by the authorities for one or two weeks on each occasion.
On 15 June 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 13 July 2010 to give oral evidence and to present arguments in relation to the issues arising in his case.
On 9 July 2010 the Tribunal received a “Response to Hearing Invitation” form from the applicant indicating that he would not be taking part in the hearing.
The Tribunal’s decision and reasons
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 found that the evidence before it was too general in nature and lacking in detail to be reliable and noted in this connection that the material supplied by the applicant, while providing an overview of his political beliefs, was very scant and lacked detail as to the harm which he said he had experienced in the past. Further, he did not attend the hearing and therefore did not take up the opportunity to provide further evidence in relation to his claims. As a result, the Tribunal was not satisfied that the applicant faced a real chance of harm for any reason should he return to India.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The RRT has committed jurisdictional and legal error.
2.The case of the applicant was not dealt in accordance with law.
3.The case suffers from serious legal misreadings [sic].
In his affidavit filed with his application on 13 August 2010, the applicant also alleged that:
a)the Tribunal did not consider his case “in accordance with the UNHCR rules” and, instead, based its decision on grounds which were not applicable to his case;
b)his situation in India was not taken into consideration nor was his “state of persecution” taken into account;
c)the Tribunal relied on country information from India. However, there is no independent information on which the Tribunal could rely and this resulted in a miscarriage of justice;
d)his matter was not dealt with in accordance with the law. There was a “clear breach” of the law applicable at the time; and
e)the Tribunal referred to country information only to the extent to which it suited the Minister’s delegate.
The applicant also filed a document entitled “Amended Application” in which submissions on the merits of his visa application were made.
Allegations in application
The first thing to be said about the allegations made by the applicant in his application commencing these proceedings is that they are not particularised. The applicant has failed to identify in what way the Tribunal erred or failed to deal with his case “in accordance with law”. Nevertheless, two general issues immediately present themselves for consideration. The first of these is that the Tribunal erred by proceeding to make a decision without having held a hearing and the second is that the decision which the Tribunal reached was itself affected with jurisdictional error.
As for the procedural decision by the Tribunal to proceed to a decision on the visa application without having held a hearing, it is useful first to refer to s.425 of the Act. It states:
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.
Given what s.425 provides, the applicant lost his entitlement to appear before the Tribunal when he advised it by way of his “Response to Hearing Invitation” form that he did not intend to participate in the hearing proposed for 13 July 2010. Once the Tribunal received this advice, it had no continuing duty to allow the applicant to appear before it. As was said 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])
For that reason, the Tribunal was entitled to proceed to a decision on the review application without holding a hearing which the applicant could attend.
As to the Tribunal’s decision on the merits of the application, it should be observed that the applicant was unsuccessful before the Tribunal because he failed to put before it information which was sufficient to satisfy it that he met the criteria for the grant of a protection visa. Indeed, given that the Tribunal had advised the applicant in its letter inviting him to a hearing that it could not make a decision favourable to him on the information then before it, such an outcome could have been predicted once the applicant decided not to attend the listed hearing.
However, in saying that, it should not be understood that the Tribunal did not conduct a proper review because the applicant failed to accept the hearing invitation. In its decision record the Tribunal set out the tests which it was obliged to apply and specifically referred to provisions of the Act which were relevant to its review. Having acknowledged the statutory framework which governed its decision-making the Tribunal then considered the information which was before it. It considered that evidence in an unexceptionable way. The result of the Tribunal’s consideration of that evidence was that it was not satisfied that the applicant met the criteria for the grant of a protection visa and in the circumstances it was entitled to reach that conclusion.
For these reasons, I find that none of the matters alleged by the applicant in his application supports a conclusion that the Tribunal’s decision was affected by jurisdictional error.
Allegations in affidavit
The first of the allegations which can be distilled from the applicant’s affidavit filed on 13 August 2010 refers to the Convention tests and alleges that the Tribunal based its decision on grounds which were not applicable to his case. However, the Tribunal did not base its decision on any particular grounds; it reached the decision it reached simply because the evidence did not satisfy it that, on the facts, the applicant met the criteria for the grant of a protection visa. As already noted, that was a conclusion which in the circumstances was open to the Tribunal. Consequently the first additional ground of review does not point to jurisdictional error on the Tribunal’s part.
The second allegation arising out of the applicant’s affidavit filed on 13 August 2010 is that his situation in India and his “state of persecution” were not taken into account. A review of the Tribunal’s decision reveals that this allegation cannot be made out. Whatever situation the applicant was in when he was in India, and whatever state of persecution he may have endured there, could emerge only from the information which the applicant supplied in support of his claim to be entitled to a protection visa. Such information as had been submitted by the applicant was considered by the Tribunal, as its decision reveals. Moreover, that information was considered in the context of the Tribunal’s own researches of independent country information concerning Sikh political history. I find that the Tribunal did take the applicant’s personal circumstances in India into account to the extent that information concerning them was available to it. As a result, the second allegation arising from the applicant’s affidavit is not made out.
The third allegation derived from the applicant’s affidavit is, in essence, that the Tribunal relied on unreliable independent information. The applicant has not sought to prove that the independent country information cited by the Tribunal was in fact unreliable and it is not apparent that it was. But in any event, the choice of evidence upon which the Tribunal makes findings of fact is a matter for it. Moreover, it should be kept in mind that the Tribunal’s decision was not based on information contained in the independent country information to which it referred in its summary of the material before it. Its decision was based on the unconvincing nature of the information which the applicant had himself supplied. The independent country information had no role in the Tribunal’s conclusion that the information supplied by the applicant was unreliable. Consequently, the third allegation made in the applicant’s affidavit does not disclose a basis on which the Tribunal’s decision should be set aside.
The fourth allegation made in the applicant’s affidavit filed on 13 August 2010 is that his review application was not dealt with in accordance with law. In essence, this allegation is no different from what the applicant alleged in his application, allegations which have been considered earlier in these reasons. In brief, on the facts, the Tribunal found that the evidence before it was so insubstantial that it was not satisfied that the applicant met the criteria for the grant of a protection visa. In doing so, it correctly referred to the relevant tests which it had to apply. It also correctly identified relevant statutory provisions. Having recognised the law it was bound to observe and apply, the Tribunal did so, having considered in an unexceptional way the evidence supplied by the applicant. In these circumstances, it cannot be said that the applicant’s review application was not dealt with in accordance with law or that any error by the Tribunal has been demonstrated on that account.
The final matter raised by the applicant’s affidavit was not clearly expressed but seems to be an allegation that the Tribunal relied on country information which had been relied on by the Minister’s delegate or which served to support the conclusion which the delegate reached. As discussed earlier in these reasons, the Tribunal’s decision was not based on country information but on the lack of persuasive evidence supplied by the applicant in support of his application. Consequently, the final matter alleged in the applicant’s affidavit does not support a conclusion that the Tribunal’s decision should be set aside.
“Amended Application”
The applicant filed a document headed “Amended Application” on 12 October 2010. The Court cannot conduct a review of the merits of the applicant’s visa application and the only basis upon which the Tribunal’s decision can be set aside is if it is affected by jurisdictional error. However, it is to the merits of his visa application that the applicant’s document entitled “Amended Application” is addressed. Because it is addressed only to the merits of his visa application, the “Amended Application” does not disclose a basis upon which the Tribunal’s decision should be set aside.
Conclusion
For all these reasons, I conclude that the Tribunal’s decision is not affected by jurisdictional error. As a consequence, the application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 23 November 2010
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