SZOTN v Minister for Immigration

[2010] FMCA 1025

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1025

MIGRATION – Review of a decision of Refugee Review Tribunal – show cause hearing – applicant did not attend before Tribunal – once the Tribunal rejected the applicant’s factual account there was no need for it to consider country information – Tribunal’s findings were reasonably open to it – application does not raise an arguable case – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91, 425, 425A, 426A, 441A, 441C, 476
Migration Regulations1994 (Cth), reg.4.35D
Federal Magistrates Court Rules 2001 (Cth), Pt.44
Convention Relating to the Status of Refugees, Art.1A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZIMG v Minister for Immigration and Citizenship [2008] FCA 368; (2008) 167 FCR 362
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572
SZHVR v Minister for Immigration and Citizenship [2008] FCA 776
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
Tickner and Others v Chapman and Others (1995) 57 FCR 451; (1995) 133 ALR 226
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41

Applicant: SZOTN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2422 of 2010

Judgment of: Nicholls FM

Hearing date: 22 December 2010

Date of Last Submission: 22 December 2010

Delivered at: Sydney

Delivered on: 22 December 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 9 November 2010, and purportedly amended on 15 December 2010, is dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth);

2. The applicant pay the first respondent’s costs set in the amount of $2,935.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2422 of 2010

SZOTN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. This application made on 9 November 2010 called on the respondent Minister to show cause why the remedies sought by the applicant should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”).

2. The applicant complains about the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 October 2010, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of India. He arrived in Australia on 10 February 2010 and applied for a protection visa on 24 March 2010 (see Court Book – “CB” – CB 1 to CB 34 with annexures).

2. The applicant’s claims to protection in Australia were set out in an attached Declaration to his protection visa application (CB 27 to CB 29). It appears, although it is not clear given the terms of the Declaration, that the applicant feared persecutory harm in India because the Indian authorities believed that he supported Sikh militants.

3. He claimed to have been under surveillance by the authorities who also detained and assaulted him because of his suspected support for these militants.

4. The applicant also appeared to assert that the authorities may have pursued him because they suspected him of being a Pakistani agent because he had previously resided in the United Arab Emirates.

5. The applicant also made reference to his inclination towards religious harmony and that upper class Hindus resented his promotion of religious tolerance, his charitable work in support of lower class Hindus, and his efforts to bring Hindus and Sikhs together.

6. He claimed also to have been harassed and assaulted by them and that they also accused him of supporting Sikh militants. In this the applicant claimed they enlisted the support of hard line Hindu political parties.

7. It must be said that it was not made clear in these circumstances why he also claimed that Sikh militants suspected his motives and that they kidnapped and detained him.

8. The applicant also claimed that his friends were assaulted and feared further harm because of their association with him.

The Delegate

1. Relevantly, I note that in his application for a protection visa the applicant provided that his postal address, which was said to be the same as his residential address, was an address in Parramatta, New South Wales (CB 13).

2. Subsequently, on 7 June 2010, the applicant notified the Minister’s department of a change of relevant address to an address in Harris Park, New South Wales (CB 43). It was to this address that invitations to appear at an interview with the delegate and a request for more information were sent by the Minister’s delegate to the applicant (CB 44 and CB 47).

3. A further letter of invitation to an interview was sent to the same address on 2 August 2010 (CB 51).

4. On the evidence available to the Court the applicant did not attend at that interview. Nor did he otherwise contact the Minister’s department to provide a reason for his non-attendance (CB 63.8). Nor is there any evidence before the Court to show that the letters that were posted to him were returned as undeliverable. Nor that the applicant otherwise sought some adjournment of the interview date.

5. It is clear that, on any plain reading, the reason for the delegate’s decision was that, on what had been put before him, he could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason (Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1961, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”)). (CB 54 to CB 59.)

6. The delegate noted that the applicant’s claims were “vague and unsubstantiated” and they lacked “detail” (CB 67.4). No evidence to substantiate the claims had been provided.

7. The delegate further noted that the applicant had been invited to attend an interview where a number of matters that the delegate saw as relevant would have been raised with him. The applicant’s unexplained failure to attend meant that this could not be done. The opportunity was lost whereby the delegate may have reached the requisite level of satisfaction, as required by s.65 of the Act, before the protection visa could be granted.

The Tribunal

1. The applicant applied for review by the Tribunal. This was done on 1 September 2010. He provided the same address in Harris Park, New South Wales as his residential address and his address for service (CB 71 to CB 72). No authorised recipient for the purposes of correspondence was nominated (CB 72).

2. By letter dated 13 September 2010, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in his case (CB 75). On the evidence available to the Court I am satisfied that it was sent on the same day to the address for service. The date for the hearing was scheduled as 11 October 2010.

3. Relevantly, I note that the Tribunal told the applicant that it had considered the material before it but was unable to make a decision favourable to him on this information alone. The reason for the hearing therefore was to provide the applicant with the opportunity to advance his prospects of being granted the visa. The importance of the hearing was made clear. The applicant was told that if he did not attend the hearing the Tribunal would proceed to make a decision without further action to allow him to appear before it.

4. The applicant was directed to an enclosed “Response to Hearing Invitation” form. He was asked to complete it and return it to the Tribunal.

5. The Tribunal did receive a completed form from the applicant on 6 October 2010 (CB 77 to CB 78). On this form the applicant notified the Tribunal that he would not be taking part in the hearing (CB 77.4). Subsequently, the applicant did not appear before the Tribunal on the scheduled day for the hearing.

6. In these circumstances the Tribunal understood that the applicant had consented to the Tribunal proceeding to make a decision without taking further action to enable him to appear before it ([27] at CB 84 to CB 85).

7. In its decision record the Tribunal noted that it was satisfied in all the circumstances that the applicant had been given an opportunity to present his claims and evidence. Although the applicant had indicated that he did not wish to attend the hearing, the Tribunal nonetheless took what it said to be the “added precaution” of waiting until after the scheduled date for hearing before proceedings to a decision ([30] at CB 85).

8. On any plain reading of the Tribunal’s decision record, the reason for its decision was that, on what was before it, the Tribunal could not reach the requisite level of satisfaction that, in effect, the applicant met the definition of “refugee” as set out in Art.1A(2) of the Refugees Convention.

9. The underlying reason for this was that the applicant’s statement of claims, to which he added nothing in his application for review, contained a number of unsubstantiated assertions that the Tribunal said were “interrelated yet lacking in essential details”. The Tribunal found that there was “insufficient and/or unclear information”. ([32] at CB 85.)

10. Further, it saw that there was “limited evidence” before it and, “without further details and clarification”, it could not be satisfied as to the broad factual assertions made by the applicant and, therefore, that the applicant had a well-founded fear of persecution for a Convention reason ([34] at CB 86). It therefore affirmed the delegate’s decision in these circumstances.

Application to the Court

1. The grounds of the application as originally put before the Court were as follows:

   “(1)  The applicant’s case was not dealt in accordance with the refugee laws.

   (2)    The RRT failed to apply the applied law in the manner there is a legal error.

   (3)    The case of the applicant suffers from the jurisdictional errors.”

Before the Court

1. At the first Court date in this matter on 8 December 2010 the applicant appeared before the Court in person. On that occasion he was assisted by an interpreter in the Punjabi language. Mr Alderton appeared for the first respondent.

2. By way of formal response to the application the Minister pressed at that time for an immediate show cause hearing pursuant to Pt.44 (specifically r.44.11 of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”)). The reason was said to be that the application put before the Court did not raise an arguable case for the relief sought and should therefore be dismissed pursuant to r.44.12 of the Rules.

3. The applicant asked for more time. He explained that he did not attend the Tribunal hearing because he was sick.

4. In the circumstances the Minister’s request for an immediate show cause hearing had great strength. The Tribunal’s decision that it could not reach the requisite level of satisfaction on what was before it, made in circumstances where the applicant had been put on notice of this yet did not want to attend the hearing, was not challenged in any meaningful way by the bare unparticularised statements in the application for judicial review.

5. The applicant’s submission that he was sick on the day of the hearing and did not attend for that reason is contradicted by his response to the hearing invitation provided to the Tribunal on 6 October 2010, some five days before the hearing, that he did not wish to attend. The applicant made no claim in that response that he was ill. Nor did he otherwise advise the Tribunal of any such difficulty.

6. Notwithstanding all of this, I determined that the applicant should be given a period of two weeks to obtain any legal assistance that may be available to him, in the hope that if there were any possibility of any proper grounds for judicial review they could at least be identified within that time.

7. I therefore set down a show cause hearing in this matter for today. In the meantime I gave the applicant the opportunity to file and serve any amended application giving particulars of any legal grounds relied on.

8. A document headed “Amended Application” with a longer annexure headed “The Grounds of the Amended Application” was filed on 15 December 2010. I will return to this document later.

9. Before the Court today, the applicant again appeared in person. He was again assisted by an interpreter in the Punjabi language. Mr Alderton appeared for the first respondent. Although written submissions were submitted on behalf of the Minister (apparently on 15 December 2010), for whatever reason, the Registry of the Court did not put those written submissions on the Court’s file. Nonetheless, to the extent necessary I granted leave for those written submissions, which I understand had been provided to the applicant at an earlier time, to be put before the Court today.

10. I prompted the applicant this morning to explain the provenance of the document that he has now put before the Court. I did so for reasons which will become more apparent in a moment, but essentially because the document by and large was of no assistance to the Court, and is of no assistance to the applicant in light of the legal issue that is for central consideration before the Court today.

11. First, it must be said that the applicant had some difficulty in explaining to the Court the exact provenance of this document. My concern was the extent to which the applicant might be able to further assist the Court, in explaining some of the deficiencies evident in this document. But ultimately it was clear that the document had been drafted by some other person who may or may not have been a lawyer.

12. Second, the applicant pressed his claims to be a refugee. As I sought to explain to the applicant today, these were claims that should have been pressed before the Tribunal. These claims that the applicant sought to put before the Court now both orally and in writing, were claims that could have been pressed before the Tribunal at the hearing which he chose not to attend. Before the Court, such submissions cannot assist the applicant. They do not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). As such they do not go to providing an arguable case before the Court today.

Consideration

1. I should deal first with the circumstances of the Tribunal’s decision. I note from the material before the Court today that the Tribunal complied with its obligation pursuant to s.425(1) of the Act. It invited the applicant to a hearing to give evidence and present argument in relation to the issues arising in relation to the decision under review. On the evidence before the Court, the Tribunal’s invitation letter was sent by one of the methods set out for that purpose in s.441A of the Act. Relevant to s.441A(4), it was sent by prepaid post within three working days of its date to the applicant’s residential address provided by him as the intended recipient of correspondence from the Tribunal for that purpose.

2. The letter complied with all of the requirements of s.425A of the Act. In particular I note that it complied with the period of notice for the hearing provided for the prescribed period as set out in reg.4.35D(b) of the Migration Regulations1994 (Cth). Given the provisions of s.441C(4) of the Act, the applicant is taken to have received the letter by seven working days after the date of the letter. The notice period is said to end 14 days after that seven day period. The period provided therefore complied with the relevant statutory and regulatory provisions.

3. In the circumstances the Tribunal was presented with two options, or two legal avenues, both in effect leading to the same result. In the circumstances, the applicant advised the Tribunal that he did not wish to attend the hearing. Pursuant to s.425(2)(b) of the Act, the applicant, therefore, at that time gave up his entitlement to appear at a hearing before the Tribunal. This created the circumstance of permitting the Tribunal to proceed to a decision without taking further action, as the applicant no longer had any right of appearing at a hearing before the Tribunal. (See SZIMG v Minister for Immigration and Citizenship [2008] FCA 368; (2008) 167 FCR 362 per Rares J at [21] to [22].)

4. The Tribunal only proceeded to make its decision after the scheduled day for the hearing, and on what is before the Court that was quite a deliberate action on its part. The applicant did not appear on the scheduled day. In these circumstances also the Tribunal was entitled to proceed, pursuant to s.426A, to a decision without taking further action to enable the applicant to appear before it. (Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 at [60]. See also more recently, for example, SZHVR v Minister for Immigration and Citizenship [2008] FCA 776.)

5. On balance, I agree with Mr Alderton’s submission that in the circumstances the Tribunal proceeded on the basis that the applicant had consented to the Tribunal proceeding to make a decision without taking further action, and that s.425(2)(b) and (3) of the Act operated to allow the Tribunal to proceed in the manner that it did. I cannot discern error in any of this on the part of the Tribunal.

6. Given the applicant’s complaints as set out variously in his documents, it is important to note the nature of the Tribunal’s decision. The applicant, as I have said, put his claims to be a refugee in a written statement that was first put before the Minister’s delegate. Despite opportunity provided to him, the applicant put nothing further before the delegate. The delegate found that, for reasons which I have already set out, he could not be satisfied that the applicant had a

   
   

   well-founded fear of Convention-related persecution.

7. When the applicant took his matter to the Tribunal, it put him on notice that, on what was before it, it could not be so satisfied, in the same way that the delegate could not be satisfied.

8. It must be said that, to a very large extent, the applicant’s complaints before the Court as expressed in the document headed “Amended Application” misunderstand the Tribunal’s decision and the statutory context in which it is obliged to operate. The relevant statutory scheme (s.65 and s.36(2) of the Act) provides that a protection visa must be granted if the Tribunal, as the relevant decision maker, reaches a requisite level of satisfaction such that, in effect, the applicant meets the definition of refugee as set out in Art.1A(2) of the Refugees Convention. For Australian purposes, this definition must be read as qualified by s.91 of the Act.

1. It is the case that if such a level of satisfaction is not reached then a refusal of the application is mandated. (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73.)

2. The applicant would have been on notice, following the delegate’s decision, of the need to provide something further to the Tribunal than what was contained in his original statement. He would also have been aware of the need to attend the hearing. As has often been said of such circumstances, the “inevitable consequence” of his not attending, is the rejection of his application. (NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].)

3. The document headed “Amended Application” now before the Court is plainly not, in any recognisable form, a proper pleading of grounds for judicial review. In part it is garbled, and in other parts fails to understand the scope of what is appropriate on judicial review of an administrative decision. Mr Alderton submitted that I should treat this document, in its entirety, in the nature of submissions rather than as an amended application. I agree with Mr Alderton. But whether it is treated as an amended application, or in the nature of submissions, in reality does not matter because it does not reveal any arguable case such that the applicant could succeed in the matter before the Court today.

4. A number of assertions or complaints can be discerned. I have considered these to see if any could be said to reach the threshold, for today’s purposes, of an arguable case which could then be restated as proper grounds for review to be heard at a further time.

5. The applicant complains that country information was not included in the Court Book. This appears to be said to be necessary because the applicant says his claims: “… fall within the ambit of social group” and apparently country information is relevant to the disposition of his claim.

6. There are a large number of difficulties with this.

7. First, any omission of country information from the Court Book now cannot possibly, just because of that fact, be said to be legal error or reveal jurisdictional error on the part of the Tribunal, as appears to be asserted in the applicant’s document.

8. Second, the applicant has not identified what country information he is talking about.

9. Third, and further, it is not surprising in the circumstances that the Minister’s solicitors did not provide any country information in the Court Book. The bundle of relevant documents that comprises the Court Book is meant to include documents relevant to a fact in issue before the Court. While some latitude is often provided in cases of this type, it must not be forgotten that, as evidence before the Court, the Court Book (the bundle of relevant documents), has to comply with proper and accepted evidentiary requirements.

10. Whatever country information the applicant is referring to in his document, it cannot be relevant to showing jurisdictional error in this Tribunal’s decision. This is because the Tribunal did not rely on any such information. Nor given the circumstances did it need to do so. The applicant, or whoever it was that drafted this document for him, fails to understand that the reason the Tribunal affirmed the delegate’s decision was not based, even in part, on any country information. As already referred to, the Tribunal’s decision turned on its inability, on what was before it, to reach the requisite level of satisfaction. In particular this was on what the applicant himself had chosen to put before the Tribunal.

11. Fourth, to the extent that the applicant claims that the Tribunal should have had regard to country information, such a complaint fails for at least two reasons:

    1)One, the consideration of the applicant’s claims never got to the stage such that the Tribunal would have needed to go to any country information. The drafter of the applicant’s document may indeed claim now that the applicant’s case comes within the ambit of “social group”, but for reasons that were plainly open to the Tribunal it rejected the applicant’s factual account to fear persecutory harm. (See [34] at CB 86.) No error is revealed in this regard.

    Having rejected the applicant’s factual account there was plainly no need to go any further.

    2)Two, in this regard, and in any event, the choice and weight to be given to any country information is for the Tribunal to determine in the proper exercise of its jurisdiction. (See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [32].)

12. Fifth, it is the case, as the applicant states, that the delegate did make reference in his decision record to some general country information (see CB 68). Given that the delegate’s decision plainly turned on the question of satisfaction in context of s.65 and s.36(2), it is unclear why the delegate felt the need to make reference to this country information.

13. Plainly, as I said earlier, the delegate found that the applicant’s information in his statement, which was all that had been put before him, was insufficient for him to reach the requisite level of satisfaction. But I also note that there is no error generally in then looking in these general terms to country information to say whatever “little” an applicant has given is, even on this basis, unsupported by any country information.

14. But even further, and I refer to this because it is raised specifically in the applicant’s document, to the extent that any complaint is made about what the delegate did, then it is the case that this Court has no power to conduct judicial review of the delegate’s decision. That is a “primary decision” within the meaning of s.476(4) of the Act. As such s.476(2) makes it clear that this Court has no jurisdiction to review the delegate’s decision.

15. Sixth, the fact that the delegate made such reference in any event does not mean that the Tribunal was also bound to have regard to this, or indeed to any other country information. As I have repeatedly said, this is another example of the applicant’s misunderstanding of the Tribunal’s reasoning and the real basis for its decision. Again, as I said earlier in the context of the delegate’s decision, the choice of any country information is, of course, for the Tribunal to make.

16. Seventh, the applicant’s complaint that he wants this country information now so that he can prepare a proper “legal” submission for the consideration of this Court again misunderstands the nature of the proceedings before this Court. Even if such information exists, and even if it were to have been of assistance to the applicant’s claim to be a refugee, any such submission, any such reliance on country information now, cannot assist the applicant before this Court. The Court has no power to make any determination that the applicant is a refugee. The applicant’s complaint in this regard is really a request for this Court to engage in impermissible merits review (Wu Shan Liang).

17. If the applicant wants some country information now to argue that the Tribunal should have taken it into account, and that if it had done so would have led to a different conclusion, again this also misunderstands the nature of the Tribunal’s decision. As I keep stressing, the applicant’s opportunity to have pressed any country information that may have assisted him was before the Tribunal, not before the Court. There is no error in the Tribunal not having had regard to any country information in the circumstance.

18. This particular complaint in all its iterations does not reveal any arguable case for the relief that the applicant seeks.

19. Turning now to another aspect of this document. It is difficult to comprehend, and the applicant was unable to assist the Court today, what exactly is meant by the complaint that the Tribunal acted in an “arbitrary” fashion.

20. To the extent that this is another way of expressing the complaint about country information, then it fails to reveal an arguable case for all the reasons to which I have already referred. To the extent that it complains about how the Tribunal disposed of the review, then again it misunderstands the nature of the Tribunal’s decision and fails for those reasons already referred to before.

21. On what is before the Court, the Tribunal did not dispose of the application in any arbitrary manner, whatever that may mean. If the applicant wanted more from the Tribunal, he should have gone to the hearing or, indeed, put before the Tribunal the statement he now puts before the Court. No arguable case is revealed in this regard.

22. If it is, on the other hand, that the applicant complains that the Tribunal did not give proper consideration to his claims, or engage in what has been described as an active intellectual exercise, or give proper consideration (in the sense explained in such cases as Tickner and Others v Chapman and Others (1995) 57 FCR 451; (1995) 133 ALR 226 or Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140) then this, again, misunderstands what has occurred.

23. As Mr Alderton pressed before the Court today, the Tribunal did examine all of the applicant’s claims. The Tribunal’s decision record reveals that the Tribunal did more than just merely reproduce the applicant’s claims, as it did at [23] (CB 83 to CB 84). It specifically turned its mind to those claims at that part of its analysis where it set out the concerns that it had with the claims and the matters that it would have pursued with the applicant if he had attended at the hearing.

24. But as Mr Alderton also submitted, quite correctly in my view, any complaint about arbitrariness on the part of the Tribunal must also be seen in light of, and answered by, the fact that the applicant himself chose not to attend the hearing.

25. As I keep emphasising, the reason for the Tribunal’s decision, as indeed was the case for the delegate, was the paucity, or the unsatisfactory state, of what the applicant had put before it. It was not some failure of the Tribunal to properly consider those claims. It is trite now to say, in light of these complaints, that the applicant should have gone to the hearing. It is not for the Tribunal to make out his case for him (Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170). Nor is this a case where the Tribunal should have made some further inquiries to see if there was some information, including country information, that could assist his case (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429).

26. The applicant also complains that he was legally unrepresented before the Tribunal, and that the Tribunal failed to take this into account.

27. The Tribunal’s obligation is to consider all the claims made by the applicant and all aspects of those claims (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

28. For the reasons that I have already set out, the Tribunal did just this. It had regard to the applicant’s only statement before it. The Tribunal’s findings as to the inadequacy of this statement were plainly open to it in the circumstances, and it gave reasons for this.

29. Second, and more pointedly, in relation to the complaint, there is no authority of which I am aware that proposes that the mere absence of legal representation before the Tribunal, and the failure of the Tribunal to consider the absence of any legal representation, constitutes jurisdictional error on its part.

30. For the sake of completeness, given how this case has proceeded before this Court, I note that there is no entitlement to accessing the Court’s “RRT Legal Advice Scheme”. I note this just in case that is also what the applicant seeks to complain about in his document. (See SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 per Gyles J at [3] to [4], a matter on appeal from this Court (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41).)

31. Finally, in relation to this purported “Amended Application”, the applicant asserts that in its decision record at [28] (at CB 85), the Tribunal used the word “contrary” where it really meant, or should have said, “country”.

32. This paragraph reads:

    “On the basis of the available material, and in the absence of any contrary information, the Tribunal accepts that the applicant has Indian nationality. It therefore assesses his claims against that country.”

33. If this amended application was drafted on the applicant’s instructions, as he appeared to say at one point before the Court this morning, then this particular complaint stands as an excellent example of the difficulties posed to applicants in these types of cases by language barriers.

34. It is abundantly clear that the Tribunal did not mean “country”. It meant exactly what it said. The meaning of the Tribunal’s paragraph is that it accepted that the applicant was of Indian nationality, because there was no information before it to suggest otherwise. There is nothing whatsoever in this to suggest that the Tribunal was making any reference to there being an absence of “country information” as being relevant to the disposition of the applicant’s claims.

35. If this document, as is unknown to the Court, was drafted by an English speaker or someone conversant with the English language, then, with the greatest of respect, I can only describe this particular complaint and the assertion on which it is based as “ludicrous”.

36. But whatever the situation, no arguable case is revealed in these circumstances.

37. The very long narrative under the heading: “The Grounds of the Amended Application” can be simply addressed, and readily disposed of as any basis of asserting any jurisdictional error on the part of the Tribunal.

38. It is in fact a somewhat more detailed version of the applicant’s factual account and claims to fear persecutory harm if he were to return to India. As I said earlier, the time for the applicant to have brought forward this document was before the Tribunal, not the Court.

39. Before the Court now this entire document ending with the plea at its conclusion that the applicant be granted a protection visa is simply no more than an attempt to seek impermissible merits review by this Court. It does not raise an arguable case to show jurisdictional error on the part of the Tribunal.

40. To the extent that the bare stated grounds of the application are said to be explained by the document headed: “Amended Application”, then no arguable case is revealed for all the reasons set out above.

41. Beyond that, on their own, the grounds as stated do not reveal jurisdictional error. Nor, for the purposes of today’s consideration, any arguable case. The Tribunal dealt with the applicant’s application according to law. No legal error is apparent. Nothing that has been said by the applicant to the Court today alters that conclusion.

Conclusion

1. The application before the Court in all its aspects does not raise an arguable case for the relief claimed. In these circumstances, it would be inappropriate and, indeed, it must be said, in the particular circumstances of the applicant’s consent not to appear at the Tribunal hearing, futile for this matter to proceed any further before the Court. The application as purportedly amended is therefore to be dismissed pursuant to r.44.12(1)(a) of this Court’s rules.

Costs

1. The Minister seeks costs in this matter.

2. The first issue is whether it is appropriate in the circumstances to make the costs order. The applicant has said to the Court that he has insufficient funds. However, unfortunately for the applicant, that is not an adequate or sufficient reason not to make the order that the Minister seeks. It is the case that it was the applicant’s right to come to this Court. But as with the exercise of many rights, there are quite often consequences. The consequence for the applicant in this case, having been unsuccessful, is that the Minister seeks some recompense, some recovery of his costs properly incurred in responding to the application that the applicant himself brought to this Court. The Minister did not bring the applicant here. In all the circumstances, I cannot see any reason, nor has any reason been put before the Court of a satisfactory nature, that the order should not be made.

3. In relation to the amount, I note that the amount is equivalent to that set out in the relevant Schedule to the Rules. I take the view that I am not strictly bound by what is set out in that Schedule. However, it is a useful guide. But the relevant test as to the amount is one of reasonableness in the circumstances of this case. Having regard to the work that has actually been done by the Minister’s legal representatives in responding to the application, the preparation of multiple copies of the Court Book, the filing of a formal Response, the filing and serving of written submissions, two attendances at Court by a solicitor, perusal of the applicant’s subsequent written statement, all lead me to the view that the amount sought is a reasonable amount. I will make that order as sought by the Minister.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  21 January 2011