SZQBV v Minister for Immigration
[2011] FMCA 727
•20 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 727 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take relevant considerations into account, failed to investigate the applicants’ claims, used the wrong country information, focussed during its hearing on irrelevancies, was biased, sent letters in English which the first applicant could not read and made a decision without waiting for the applicants to supply further evidence. PRACTICE & PROCEDURE – Application to set aside interlocutory dismissal of proceedings – relevant considerations. |
| Migration Act 1958, ss.424A, 424AA |
| Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| First Applicant: | SZQBV |
| Second Applicant: | SZQBW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 558 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 September 2011 |
| Date of Last Submission: | 20 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2011 |
REPRESENTATION
| The first applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicants’ application in a case dated 15 August 2011 be dismissed.
The applicants pay the first respondent’s costs of and incidental to their application in a case fixed in the amount of $800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 558 of 2011
| SZQBV |
First Applicant
| SZQBW |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, are citizens of India. The first applicant claims that, while in India, he was a member of the Bharatiya Janata Party (“BJP”). He claims that he left the BJP “in protest” and subsequently became a member of the Congress Party.
He claims that, as a result, he was targeted by the BJP and was forced to leave India in order to save his life.
The first applicant claims to fear persecution in India because of his political opinion.
After the applicants’ arrival in Australia on 21 March 2010, the first applicant lodged an application for a protection visa. His wife, the second applicant, was included in that application as a member of his family unit. On 20 August 2010 a delegate of the first respondent (“Minister”) refused their application, following which they applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal.
The applicants applied to this Court on 28 March 2011 for judicial review of the Tribunal’s decision. On 2 May 2011 the proceedings were listed for hearing on 20 July 2011. On 20 July 2011 there was no appearance by the applicants and the hearing was adjourned to 28 July 2011. On 28 July 2011 there was still no appearance by the applicants and the application was dismissed for the reasons which were given at that time. By an application in a case filed on 15 August 2011, the applicants seek the reinstatement of the proceedings.
There are two questions which I consider to be relevant when determining the applicants’ application that the dismissal ordered on 28 July 2011 be set aside. Those are, first, whether the applicants have a satisfactory explanation for their non-attendance on the last occasion and, secondly, whether the claims made in their substantive application have reasonable prospects of success.
For the reasons which follow, the application will be dismissed.
Explanation for non-attendance
The first applicant submitted to the Court that he and his wife’s failure to attend on the last occasion was because they did not have enough money, they were in Darwin and they did not understand the proceedings, or perhaps it might be better articulated that it was the first applicant who did not understand the proceedings because it appears that it was principally by reference to his knowledge that the submission was made.
I accept that the applicants are unfamiliar with Australian court processes and may be short of money and that these difficulties were exacerbated by them being in Darwin at the relevant time. However, they knew well in advance when the matter was first listed for hearing and were given a second opportunity to attend when the hearing was adjourned for a week. These proceedings concern the first applicant’s fear of being killed were he to return to India and yet he did not ensure he was present at court to argue that the Tribunal erred and that its unfavourable decision on his visa application should be reversed. Given the notice which the applicants had of the 20 July 2011 hearing I do not accept that adequate plans could not have been made for them to attend it.
In any event, the first applicant’s statements from the bar table did not go beyond generalities. In particular he did not identify what the applicants’ financial position was or how this impacted on their ability to attend court in July. Nor did the first applicant explain why he could not arrange the assistance to get to Sydney which it appears he has needed to be here today. In a matter of such seriousness these are issues which should have been adequately addressed by the first applicant in the submissions which he made to the Court.
I am not satisfied that the applicants have demonstrated a satisfactory explanation for their absence from court on 20 or 28 July 2011. Although the lack of a satisfactory explanation might be of limited significance were the applicants to have a claim to constitutional writs with reasonable prospects of success, that is not the situation in this case.
Reasonable prospects of success
Background facts
The first applicant made the following claims in a statement attached to his protection visa application form:
a)his used to be a member of the BJP but “walked out” in protest because the BJP leader was corrupt;
b)he joined the Congress Party before the state elections in 1997 and subsequently became an enemy of the BJP;
c)he worked very hard for the Congress Party candidate, Thakor Bausinghji Mohansinghji, during the state elections, however, the seat was won by Mangaldas Madhavalal, the BJP candidate;
d)after the election he was beaten by Mangaldas Madhavalal’s hirelings;
e)he organised many demonstrations and processions against “the Mangaldas”. During one particular demonstration he was attacked and injured by BJP members;
f)Mangaldas Madhavalal’s accomplices fabricated documents to steal his land, causing “a legal dispute”. When he took the matter to the police, they came to his house and threatened to kill his family;
g)he was forced to close his business; and
h)he fears that he will be killed if he returns to India.
The first applicant appeared before the Tribunal on 27 October 2010 at which point he made the following additional claims:
a)he started a submersibles business in 1995 which, he initially said, ceased operating in 1997. He then said that the business was closed in 1999 as a result of the problems he experienced during the election. However, when questioned by the Tribunal about the statement in his protection visa application that he had been the owner of the business from 2000 to 2009, he said that the business “was there but it was closed”, that it had no income and that he was not doing anything in relation to it;
b)he was issued with a passport in 2005 but did not want to leave India at the time. Also, he hoped that the BJP might forget about him but they did not and continued to harass him;
c)contrary to the information provided by the Minister’s department, the bank statements which he submitted in connection with his application for a visitor’s visa were not fraudulent;
d)he joined the BJP in 1995 but left one-and-a-half years later because he did not like the party’s policies. He also left in protest against the BJP leader who was, at the time, Mangaldas Madhavalal;
e)he confirmed that he worked for the Congress Party candidate, Thakor Bausinghji Mohansinghji, in the 1997 state election but the seat was won Mangaldas Madhavalal, the BJP candidate,
f)after the election, Mangaldas Madhavalal’s people started to target him because they were not happy that he had left the BJP and joined the Congress Party;
g)he was attacked and badly injured during the BJP’s celebratory procession following the 1997 election. He lodged a complaint with the police but they refused to support him because of Mangaldas Madhavalal;
h)although he stopped his political activities, the BJP continued to harass him almost every day or once or twice a month right up until the time of his departure from India.
i)he went to the police but they refused to help him. The first time he went to the police they (i.e. the police) came to his home and threatened to kill his parents. He then said that his first complaint to the police related to when he was injured by the BJP and that a second complaint was made while he was injured which related to the BJP’s attempts to take his land. It was following the second complaint that the police threatened to kill his parents; and
j)Mangaldas Madhavalal’s accomplices were successful in taking his lands.
The Tribunal wrote to the applicants on 15 November 2010 and invited them to comment on or respond to information which it considered might be the reason or part of the reason for affirming the delegate’s decision. The particulars of that information were as follows:
· Information on the file of the Department of Immigration and Citizenship is that when you applied for a Subclass 676 visa to visit Australia you provided bank statements;
· Information on the Department’s file is that the Department contacted the HDFC Bank … to check the bank statement …. The Department spoke with the assistant manager who checked the records and stated that the account is an invalid number and there is no such existing account with the bank.
The applicants did not respond to the Tribunal’s letter.
The Tribunal held a further hearing on 21 February 2011 at which point the first applicant confirmed that the Congress Party candidate for whom he had worked was Thakor Bausinghji Mohansinghji and not Chavda Ishwersinh Shivaji as suggested by the Tribunal by reference to country information.
The Tribunal’s decision and reasons
After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the first applicant persistently claimed that he had worked for the Congress Party candidate, Thakor Bausinghji Mohansinghji, in a state election in Gujarat in 1997. However, according to country information before the Tribunal, which it accepted, the state election in Gujarat took place in 1998 and the Congress Party candidate for the seat in question was a person named Chavda Ishwersinh Shivaji. The Tribunal found that this was a “central and significant error and inconsistency” in the first applicant’s evidence and concluded on this basis that he had not been a witness of truth. Consequently, it did not accept that he had worked for the Congress Party candidate in 1998 (or 1997 as he claimed). It also found that he had never been a member of the Congress Party;
b)in light of these findings, the Tribunal did not accept that the first applicant had been involved in organising political demonstrations and processions or that he had been targeted or injured by the followers of Mangaldas Madhavalal. Further, it did not accept that he had ever been a member of the BJP. The Tribunal therefore found that he did not have a well-founded fear of persecution for reasons of his political opinion or for reasons of his membership of a particular social group, being a member of a group of persons who have left the BJP and joined another party;
c)the first applicant claimed that he had been harassed, tortured and regularly threatened with death since 1997 but made no attempts to leave India until 2010 despite having been issued with a passport in 2005. In the Tribunal’s view, his delay in departing India was inconsistent with his claimed fear and the Tribunal did not accept that the first applicant departed India because he feared for his safety;
d)given its finding that he had not been a witness of truth, the Tribunal did not accept that the first applicant’s lands were taken by Mangaldas Madhavalal’s accomplices. It noted that the first applicant did not provide any evidence to support the change of ownership and, significantly, gave inconsistent evidence about when the police came to his home and threatened to kill his family. For these reasons, the Tribunal did not accept that the first applicant had a well-founded fear of persecution for reasons of his membership of a particular social group, being “the owner of land fraudulently taken” or “a person who has had his land taken because of false documents”;
e)the Tribunal was satisfied that the applicants had provided false information to the department, by way of a fraudulent bank statement, in order to be granted visas to Australia. In particular, and based on the information provided by the applicants’ claimed banking institution, the Tribunal was satisfied that the account identified in the applicants’ bank statement did not exist; and
f)the first applicant gave inconsistent evidence about when and for how long his submersibles business operated. Consequently, the Tribunal did not accept that he had had to close his business because of the attacks and threats which he alleged had been made against him.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.That the decision of the Refugee review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims.
2.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
3. The Tribunal exceeds is [sic] jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
4.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
5.The RRT member emphasised on some irrelevant questions at the hearing and ignored our profession and political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
In his affidavit filed with the application, the first applicant also alleged that:
The Tribunal has failed to investigate my claims, specially the ground of persecution in India. Therefore, the Tribunal decision was effected by actual bias constituting judicial error.
Grounds 1 and 2
The first and second grounds of the application should be read together. This is made clear by the particulars to ground two which were in the following terms:
a.The Tribunal did not consider the applicant who had been under immense and intimidating pressure from BJP (Bharatiya Janata Party) and harassed because of the applicant walked put [sic] of the BJP in protest against the leader who was corrupted and provoked communal riot and joined the Congress Party.
b.In relation to above the Tribunal did not consider the applicant claim that if he has to go back to India in near future, they will seriously harm him.
The summary of the evidence before the Tribunal and the reasoning of the Tribunal summarised earlier in these reasons demonstrates that the first applicant’s claims based on his move from the BJP to the Congress Party and on his campaigning for the Congress Party candidate in the Gujarati state elections of 1997 were recognised and considered by the Tribunal. Not only did the Tribunal consider the basis of the claims, but it also considered the fear which the applicant said arose from those circumstances. For these reasons the first and the second grounds of the application are not made out.
Ground 3
The third ground of the application alleges that the Tribunal failed to investigate the applicants’ claims, an allegation which is also reflected in the first sentence of the second paragraph of the first applicant’s affidavit of 25 March 2011 quoted earlier in these reasons.
The Tribunal does not have a general duty to make inquiries. However, as was said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123:
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at 1129 [25]) (footnote omitted)
However, such circumstances do not exist here. The applicants have not identified what obvious inquiry about which critical fact the Tribunal failed to make. In the circumstances, the Tribunal had no duty to make inquiries and its failure to do so did not amount to jurisdictional error.
Ground 4
The fourth ground of the application appears to allege that the Tribunal ignored country information provided by the applicants and preferred country information which it had discovered for itself. On a factual basis, other than certain allegations which the first applicant made in various statements to the Minister’s department and to the Tribunal, it is not apparent that the applicants gave any independent country information to the Tribunal. But in any event, even if they had, and even taking into account the material contained in the first applicant’s written and oral statements, it is a matter for the Tribunal what evidence it chooses to use when reaching its decision and the weight which it gives to any information which is before it. Other than in exceptional circumstances which do not exist here, the evidence relied upon by the Tribunal in reaching its decision and the weight accorded to such material is a matter for it and not one which grounds a finding of jurisdictional error.
Ground 5
The fifth allegation in the application speaks of the Tribunal having ignored relevant material but, other than the references in the fifth allegation to the Tribunal having ignored their professional and political background and having given emphasis to some irrelevant questions at the hearing, the applicants have not identified what material was ignored by the Tribunal
As to the “irrelevant questions at the hearing”, the matters which concern the Tribunal during the course of its hearing and which it chooses to explore during such a hearing are not an issue in the relevant sense. What is relevant is what the Tribunal did or did not take into account when reaching its conclusion.
The reference in the fifth allegation to the applicants’ backgrounds does not provide a basis to find the Tribunal erred. In relation to the applicants’ professional backgrounds, it must be noted that no claim was made by them that their professional working backgrounds were relevant to the claim to fear persecution in India. As to their political backgrounds, it has not been asserted that any claim was made concerning the second applicant’s political interests, should she have had any, and as far as the first applicant was concerned, as is apparent from the Tribunal’s decision summarised earlier in these reasons, the Tribunal did give detailed consideration to that issue.
Affidavit
In his affidavit of 25 March 2011 the first applicant alleged that the Tribunal’s decision was affected by actual bias. Examples of actual bias would be the Tribunal’s enmity or affection towards an applicant, some form of interest in the outcome of the review or a state of mind, being a form of pre-judgment by which the Tribunal is so committed to a conclusion already formed as to be incapable of altering that judgment whatever evidence or arguments might be presented. No evidence or any submission was made concerning whether the Tribunal had any enmity or affection towards the applicants, or any interest in the outcome of their review, and there is no basis to make a finding that there was or that the Tribunal did. Nor did the applicants point to anything in the Tribunal’s decision which would support a conclusion that it had approached the review with a mind already made up. The only evidence touching on this issue is the Tribunal’s decision record appearing in the Court Book, which is Exhibit A, and I am not of the view that it supports a conclusion that the Tribunal approached the review with a mind already made up. Its finding on the first applicant’s credibility was open to it on the evidence.
For these reasons, the allegation of bias is not made out.
Oral submissions
In his oral submissions to the Court, the first applicant raised two additional matters. The first of these was that he does not speak, understand or read English and that he did not understand any letters which were sent to him by the Tribunal.
The applicant did not identify any letters of particular concern, although it might be inferred that the Tribunal’s letter of 15 November 2010 notifying certain information pursuant to s.424A of the Migration Act1958 (“Act”) was a matter to which the applicant impliedly referred. However, the Tribunal is under no obligation to express its communications in any language other than English. It is the responsibility of applicants before the Tribunal to ensure that they understand the communications which pass between it and them, because it is their practical obligation to satisfy the Tribunal they meet the criteria for the grant of a protection visa and that the delegate’s decision should be varied or set aside. For these reasons, the first matter raised by the first applicant in his oral submissions does not disclose jurisdictional error on the Tribunal’s part.
The second matter raised by the first applicant in his oral submissions was that the Tribunal refused his claims because he had not been able to provide a letter from India in support of his claims based on his political activities in India. This allegation raises two issues. The first is whether the Tribunal was entitled to make the factual decision it made on the evidence which it had. I am satisfied that the factual conclusions reached by the Tribunal were open to it on the evidence.
The second issue is whether the Tribunal erred in proceeding to make a decision without having waited for the first applicant to have produced a letter from India addressing his political activities in that country.
In this regard it should first be noted that at its hearing on 27 October 2010 the Tribunal put to the first applicant its concerns regarding his political activities. Paragraph 161 of the Tribunal’s decision records that it asked the first applicant if he wanted further time to provide additional information about the Congress Party candidate in the Gujarati state elections and that he responded that he could provide further information. The Tribunal allowed the first applicant until 11 November 2010 to provide such further information.
It appears that the first applicant did not provide any such information prior to the second Tribunal hearing on 21 February 2011. Paragraph 168 of the Tribunal’s decision states that on 21 February 2011 it asked the first applicant whether there was anything he wished to say and that he responded that he did not have anything further to add. During the course of that further hearing on 21 February 2011, the Tribunal put certain information to the first applicant purportedly pursuant to s.424AA of the Act concerning his political involvement and particularly the candidates for the Congress Party at times relevant to his claims. The Tribunal asked the first applicant if he wanted more time to comment on or respond to the information in question and he replied that he did not.
In para.173 of its decision, the Tribunal continued its narrative of the 21 February 2011 hearing saying:
The Tribunal informed the applicant that at the previous hearing the Tribunal had allowed him some time to provide further information to the Tribunal in support of his statement but he did not provide any information to the Tribunal after the first hearing. The Tribunal asked the applicant if there was anything else that he wanted to say. The applicant stated that he is not lying. The candidate was Bausinghji Mohansinghji.
In the next paragraph of its decision the Tribunal recorded that it asked the first applicant if he had been able to find any documentary evidence to support what he had said and that he replied that he did not but that he could try to ask for information to be sent to him from India. The Tribunal recorded that it informed the first applicant that it would not allow him any more time to obtain that information, stating that it believed that it had already provided him with ample time to obtain it. The Tribunal recorded that it informed the first applicant that any information he did provide before it made its decision would be considered.
The Tribunal’s reasons for not allowing the first applicant additional time to supply information from India were set out clearly enough in its decision record and were basically that he was told on 27 October 2010 that he could provide that information by 11 November 2010 but had failed to do so by 21 February 2011. The Tribunal’s decision record does not indicate that the first applicant identified to the Tribunal any particular reason why the information was not supplied within the time the Tribunal specified or any reason why he should be given more time than he had already been allowed.
In the circumstances, the applicants have not demonstrated that the Tribunal’s decision whether to proceed to, or delay, its decision on the review represented a miscarriage of discretion.
Conclusion
None of the matters which the applicants have raised in support of their principal application demonstrate that the Tribunal’s decision is affected by jurisdictional error, which is the only basis upon which the Court can set it aside.
As the applicants have failed to demonstrate that their claim for constitutional writs has reasonable prospects of success and, given that I am not satisfied that they have provided a satisfactory explanation for their failure to attend the hearings listed on 20 and 28 July 2011, their application that the order made on 28 July 2011 be set aside will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 October 2011
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