SZQAO v Minister for Immigration
[2011] FMCA 390
•24 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 390 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly exercised its discretion under s.426A of the Migration Act 1958 (Cth) to make its decision on the review without taking any further steps to invite the applicant to appear before it – whether the Refugee Review Tribunal complied with s.425 and s.425A of the Act in inviting the applicant to attend a hearing to give evidence and present arguments – whether the Refugee Review Tribunal was obliged to investigate the applicants claims – whether the Refugee Review Tribunal’s decision was affected by bias. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1); 424; 425; 425A; 426A; 441A; 474 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 |
| Applicant: | SZQAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 466 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 May 2011 |
| Date of Last Submission: | 24 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2011 |
REPRESENTATION
| The Applicant appeared in person and was assisted by a Punjabi interpreter |
| Solicitors for the Respondent: | Mr Alderton (Sparke Helmore) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 466 of 2011
| SZQAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth), for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 16 February 2011 and handed down on 17 February 2011.
On 18 June 2010 the applicant lodged an application for a protection visa.
The applicant’s claims for protection
The applicant’s claims in support of his protection visa are accurately summarised in paragraph 3 of the first respondent’s outline of submissions which stated as follows:
”3 In his Protection visa application, the applicant claimed that his religion was Sikh and he belonged to the Jat ethnic group. He also claimed that he was an active member and “head” of Dera Sacha Sauda (DSS) in his local area. He claimed he joined the DSS in 2000 and started to spread the teachings of Dera to others in his local area. He claimed further that in May 2007 there was a clash between DSS and Sikh protestors, one person was killed in the clash and Sikh organisations blamed DSS members for the death. In December 2008, the applicant claimed that five or six people from the Khalsa Action Committee (KAC) attacked his home whilst he was holding a prayer meeting and beat him with an iron rod. The applicant and two others were injured and hospitalised and had death threats made to them. The applicant asserted that the KAS was an alliance of terrorist Sikh organisations and that although he approached the police over the incident, they failed to take any action. He claimed that because the DSS supported the Congress Party (of which the applicant was also a member) it was targeted by the ruling party, the BJP. He considered that the BJP had no interest in protecting DSS followers. The applicant claimed that if he returned to India he would be forced to change his religion.” (Citations removed).
The applicant was invited to attend an interview with a delegate of the Minister. However, the applicant failed to do so. The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations on the material before it and refused the applicant a protection visa.
On 19 November 2010, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
The Tribunal’s review and decision
On 13 January 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that the Tribunal had arranged for a hearing on 15 February 2011 at TAFE New South Wales Riverina Institute on the Griffith Campus at Griffith. The letter informed the applicant that a Punjabi interpreter had been made available and that arrangements had been made to conduct the hearing by video conference.
The letter informed the applicant that the Tribunal member and interpreter would be in Sydney and that if there was a preference to attend in person in Sydney that the applicant should contact the Tribunal as soon as possible. The letter also requested the applicant to complete the enclosed response to hearing invitation form to confirm the hearing and provided the applicant with the contact details of translating and interpreting services, as well as the Tribunal’s national enquiry line.
The Tribunal’s letter also informed the applicant that the Tribunal would only change the hearing date for good reason and that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it.
On 21 January 2011, the Tribunal received a response to hearing invitation from the applicant indicating that he did wish to take part in the Tribunal hearing and that he requested the Punjabi interpreter. There was no other relevant information on that response to hearing invitation to suggest that either Griffith or video conference was unacceptable to the applicant.
Documents tendered by the first respondent without objection and marked Exhibit 1R, indicate that on 13 January 2011 notes were made by an officer of the Tribunal. They record as follows:
“Called Griffith at 9.55 to see if applicant had arrived. Was advised that the applicant hadn’t arrived so have called PM, who had asked to be called in 30 minutes. At 10.37 called Griffith, who had advised that the applicant still had not arrived. Advised PM, who asked for the interpreter to be signed off.”
The Tribunal noted in its decision record that it had written to the applicant on 13 January 2011 in the terms referred to above. The Tribunal further noted that it had received the applicant’s response to hearing invitation form on 21 January 2011 confirming that he wished to attend the hearing. The Tribunal’s decision record then noted that the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal noted in its decision record that there was no further communication received from the applicant in relation to the proposed hearing on 15 February 2011.
The Tribunal then decided, in accordance with the discretion provided to it in s.426A of the Migration Act 1958 (Cth) (“the Act”), to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then considered the applicant’s written claims and found them to be expressed in vague, general terms. The Tribunal found that the applicant had not provided essential details, including dates, locations and events. The Tribunal identified particular aspects of the claims with which it had concerns and found that, without more information, it was difficult to decide the weight to be given to the assertions. The Tribunal noted that the applicant had not provided any further information to the Tribunal which would enable it to be satisfied about his claims.
The Tribunal found that in view of this insufficient information and lack of detail, it was not satisfied that the applicant had been persecuted for a Convention reason in the past or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented before this Court this morning, although had the assistance of a Punjabi interpreter. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of the grounds.
The applicant filed an amended application on 18 May 2011 which he confirmed at the commencement of the hearing contained the grounds upon which he relied. Those grounds are as follows:
“1. The Tribunal has failed to investigate my claims, specially the grounds of persecution in India. Therefore the Tribunal’s decision was effected by actual bias constituting judicial error.
2. The Tribunal had no jurisdiction to make the said decision because ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test before dismissing the applicant’s claim. ”
Neither ground was supported by particulars, relevant evidence or submissions.
In support of Ground 1, the applicant began to say that his car had broken down and he had told the Department about that fact. I said to the applicant that he had not provided any evidence to that effect and if he wished to give oral evidence in support of his application, he would need to seek leave to do so. The applicant duly sought leave, which was not opposed by the respondent. The applicant was then sworn and gave oral evidence in support of his application to this Court.
The relevant evidence given by the applicant in relation to his failure to appear at the Tribunal’s hearing was that: he had some problems; it was his mistake; he couldn’t reach Sydney; his hearing was in Griffith some 50 to 60 kilometres away; there were transport problems; and, there were hardly any buses or trains from where he lived to Griffith.
In cross-examination, the applicant agreed that he had been advised by letter dated 13 January 2011 that he would have a video conference in Griffith and that the letter told him that he should tell the Tribunal if this was not convenient for him. The applicant responded that he did not understand the letter. The respondent’s solicitor, Mr Alderton, then put to the applicant that the applicant was aware that there was to be a video conference in Griffith, to which the applicant responded, “Yes”, and that he had had a friend who had had a hearing at Griffith. The applicant agreed that he did not at any time tell the Tribunal that he did not wish to go to Griffith.
In the circumstances, I am satisfied that the applicant received the letter of invitation from the Tribunal, was aware of the date, place and time of the hearing, had no objection to the hearing being conducted by video conference in Griffith, chose not to attend the hearing and did not inform the Tribunal accordingly.
The first respondent read the affidavit of Joseph Benedict Johnson, sworn 23 May 2011, annexing a lodgement receipt relating to the Tribunal’s letter dated 13 January 2011, which is stamped 13 January 2011, and a declaration by the sender dated 13 January 2011. Based on that evidence, I am satisfied that the Tribunal’s letter of invitation was sent within 3 days of the date of the letter of invitation as required by s.425A and s.441A of the Act.
The first respondent’s evidence makes clear that the Tribunal sent to the applicant a letter inviting the applicant to appear before it to give evidence and present arguments on a specified date at a specified location and time in accordance with s.425 and s.425A of the Act.
In the circumstances, I am satisfied that the letter and invitation sent to the applicant was sent in accordance with the statutory regime.
Accordingly, there is no error in the exercise of the Tribunal’s discretion, exercised pursuant to s.426A of the Act, to decide to proceed with making a decision on the review without taking any further step to enable the applicant to appear before it.
Ground 1
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The applicant was given an opportunity to file evidence in support of his application at a directions hearing on 4 May 2011. Further, the applicant confirmed that he had participated in the Court’s RRT Legal Advice Scheme. In addition, at the directions hearing, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant confirmed that the only document that he had filed in the proceeding, other than his initiating application and affidavit annexing the Tribunal decision, was the amended application of 18 March 2011.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Further, I accept the submission of the solicitor for the first respondent that it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
Accordingly, the allegation of bias or apprehended bias is rejected
In ground 1, the applicant also made the bare assertion that the Tribunal failed to investigate his claims. The Tribunal has no such duty to investigate claims in circumstances of such a bare assertion.
It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Accordingly, ground 1 is not made out.
Ground 2
The applicant told the Court that he had nothing to say in support of ground 2.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the applicant’s written claims. It expressed its concerns about the vague and general terms in which they were expressed and the particular concerns it had about the applicant’s claims. Its findings and conclusions were open to it on the material before it.
Section 65(1) of the Act mandates that if a decision-maker such as the Tribunal is not satisfied that an applicant meets the criteria for being a refugee, then the decision-maker must refuse the application. As stated above, the Tribunal’s findings were open to it on the material before it and for the reasons it gave. There is no error demonstrated on the face of the Tribunal’s findings and reasons.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant and had regard to all material provided in support. The Tribunal made findings based on the material before it which were open to it and for the reasons it gave. The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
Accordingly, ground 2 is not made out.
Conclusion
The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with the decision of the Tribunal.
The proceeding before this Court, commenced by way of application filed on 15 March 2011, should be dismissed with costs.
RECORDED : NOT TRANSCRIBED
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 30 May 2011
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