SZQDY v Minister for Immigration
[2011] FMCA 538
•11 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQDY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 538 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious or particular social group persecution in India – applicant failing to attend Tribunal hearing – Tribunal unable to be satisfied about the applicant’s claims – no arguable case of jurisdictional error. |
| Migration Act 1958 (Cth), ss.426A, 474, 476 |
| Minister for Immigration v Guo & Anor (1997) 191 CLR 559 NAVX v Minister for Immigration [2004] FCAFC 287 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Prasad v Minister for Immigration (1985) 6 FCR 155 Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZQDY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 750 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 11 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2011 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Ms J Ingram Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,460.
The Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 750 of 2011
| SZQDY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 17 March 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India. Background facts relating to his protection visa claims and the Tribunal’s decision them are summarised in written submissions filed on behalf of the Minister on 4 July 2011.
The applicant is a citizen of India.[1] He arrived in Australia on 25 February 2008 on student (class TU 573) visa[2] and lodged an application for a protection visa on 17 March 2010.[3]
[1] Court Book (CB) 42.
[2] CB 40.
[3] CB 1-28.
The applicant, in his protection visa application, claims that he suffered discrimination, threats and physical abuse in India by upper class Hindus and the police because he belongs to a low caste Hindu family and had fought for his rights against upper class Hindus.[4]
[4] CB 27-28.
On 9 June 2010, the Department wrote to the applicant, inviting him to an interview.[5] The applicant did not attend this interview nor contact the Department to explain why he was unable to attend.[6]
[5] CB 34-35.
[6] CB 43.
On 18 June 2010, the applicant's protection visa application was refused by the delegate, essentially on the basis that the applicant's claims were too general and the delegate was unable to give them any weight.[7]
[7] CB 40-45.
On 21 October 2010, the applicant applied to the Tribunal for review of the delegate's decision.[8] By letter dated 8 February 2011, the Tribunal notified the applicant that it would not be able to make a decision favourable to him on the material before it alone and invited him to a hearing on 16 March 2011 at 9.00 am.[9] The applicant did not attend the scheduled hearing.[10]
[8] CB 50-53.
[9] CB 60-61.
[10] CB 68, [68].
By letter dated 18 March 2011, the Tribunal affirmed the decision of the delegate.[11]
[11] CB 62-70.
Tribunal's decision
In the circumstances outlined above, and pursuant to s.426A of the Migration Act 1958 (Cth) (“the Migration Act”), the Tribunal proceeded to make its decision without taking further action to enable the applicant to appear before it.[12]
[12] CB 68, [24].
The Tribunal found that the applicant's claims were general and lacking in essential detail.[13] It was unable to be satisfied that there is a real chance of the applicant being persecuted now or in the reasonably foreseeable future for any Convention related reason.[14]
[13] CB 69, [30].
[14] CB 70, [32].
The judicial review application
These proceedings began with a show cause application filed on 18 April 2011. In that application, the applicant raised three grounds of review. The first ground states:
1. That the statement of decision given by the RRT on 18th march 2011, at page 6 of 8 is not in accordance with the law and facts of the case, especially the references quoted by the member of the RRT are not applicable in the instant matter in hand. Because the mere fact remains the same that the honourable High court has held that there should be well founded reason, of being that the applicant is at a great risk of being persecuted and killed. Moreover, the member at the paragraph 31 of the decision, lays down the that He is not satisfied on the evidence before him that the applicant does not belong to a low caste hindu. In what circumstance until and unless it is rebutted the member held that the applicant is not from the low caste Hindu. The only question, is what made him to declare that the applicant is not from a low caste hindu. Therefore this matter requires judiciary interference from this honourable court, this also involve a question of law despite the fact that either the evidence of the applicant should have been accepted or rejected. In this matter what actually the evidence was before the member to be of view that the applicant is not from a low caste Hindu, and he is not facing discrimination, and the most important thing is that the applicant social group was discarded by the RRT, and the following evidence appearing at page 2 or 3 are totally denied, as such the applicant request the interference of the court that there is a jurisdictional and legal error. As the RRT decision demonstrate gross disrespect and bias views which seems to reveal the personal ethics of the RRT member."
Grounds 2 and 3 assert that the applicant has suffered persecution in India and that low caste Hindus suffer many disadvantages.
In the applicant's affidavit sworn 12 April 2011 and filed on 18 April 2011, the applicant makes further factual assertions in support of his claim for protection, and also states:
1. That the decision made by the respondents suffers from jurisdictional error because in the decision of the respondents onle (sic) demonstrated his personal views, rather than assessing the application on merits. The RRT has laid down the rules and regulation of UNHCR, where as the member of the RRT brushed aside the well founded fear and threat to his life and liberty.
I gave directions in the matter on 17 May 2011 which the applicant attended in person. He told me at that time that he did not require the assistance of an interpreter. He also declined the offer of legal advice under the Minister’s panel advice scheme. I listed the matter for hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I made that direction noting the generality of the grounds in the show cause application and the focus in that application on the merits of the Tribunal decision, notwithstanding that some language of judicial review was employed.
The applicant filed an amended application on 14 June 2011. That application does not raise any grounds of review, but instead repeats the claims made by the applicant in his statement attached to his protection visa application.
The applicant did not appear when today’s hearing was called. The matter has been called twice and on each occasion there was no appearance by or on behalf of the applicant. There is no explanation for his non-appearance although it is possibly relevant that he did not appear at an interview before the Minister’s Department to which he was invited. Neither did he appear at a hearing before the Tribunal to which he was invited.
The solicitor for the Minister attempted to contact the applicant on the mobile telephone number provided in the original and amended applications and also in the information sheet completed by the applicant at the first court date hearing on 17 May 2011. The attempt to contact the applicant was unsuccessful when the phone rang out. In the circumstances, and bearing in mind that the applicant has filed an amended application, I have decided to proceed to deal with that application in the absence of the applicant.
Consideration
The Minister’s submissions deal with the grounds in the original application. I agree with those submissions.
The applicant will only be entitled to the relief sought if he can demonstrate jurisdictional error on the part of the Tribunal.[15] If the Tribunal did not commit jurisdictional error then the decision is immune from further judicial review by the privative clause in s.474 of the Migration Act.
[15] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].
Ground 1
Ground 1 raises several issues which may be summarised as follows:
a)the Tribunal's reference to Minister for Immigration v Guo (1997) 191 CLR 559 at 572 is not relevant to the present case;
b)the Tribunal's finding that it was not satisfied that the applicant is a low caste Hindu is not supported by evidence;
c)the evidence recorded at pages 2-3 of the decision record, relating to the validity of the applicant's review application, is denied; and
d)the Tribunal was biased.
The Tribunal, at [22] of its decision, cites the High Court's finding in Minister for Immigration v Guo (1997) 191 CLR 559 at 572:
No fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.
Contrary to the applicant's assertion as summarised at paragraph 19a) above, Guo is relevant to the present case. The applicant had claimed to fear persecution in India because he is a low caste Hindu but had not submitted any evidence to demonstrate that his fear is well-founded. Indeed, as noted by the Tribunal, his claims “amount to little more than bare assertions”.[16]
[16] CB 69, paragraph [30].
With respect to paragraph 19.b) above, the applicant appears to suggest that it was for the Tribunal to produce evidence to rebut the applicant's claim that he is a low caste Hindu. This assertion misconceives the role of the Tribunal in assessing the applicant's claim for protection. The mere fact that an applicant claims to fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is “well founded”, or that the fear of persecution existed for the reason claimed. The relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. The Tribunal is not required to make the applicant’s case for him, nor is it required to accept uncritically any and all the allegations made by the applicant: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170.
The applicant provided very little detail in his protection visa application and no further detail in his application to the Tribunal. The applicant was invited to a hearing and did not avail himself of that opportunity to be heard. The Tribunal could not be satisfied that the applicant was a member of a low caste Hindu family on the limited information before it.
In NAVX v Minister for Immigration [2004] FCAFC 287, the Full Court of the Federal Court made the following remarks concerning similar circumstances where an applicant had failed to appear before the Tribunal (at [5]):
Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution... Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
The applicant asserts, as set out at paragraph 19.c) above, that “evidence appearing at page 2 or 3 are totally denied”. This evidence relates to the validity of the applicant's application to the Tribunal for review of the delegate's decision.[17] On the basis of this evidence, the Tribunal found in the applicant's favour that he had in fact submitted a valid application for review.[18] It is therefore unclear why the applicant seeks to deny this evidence. The applicant's denial of the evidence at pages 2 and 3 of the Tribunal's decision is irrelevant for the purposes of these proceedings.
[17] CB 64-65.
[18] CB 65, paragraph [11].
With respect to paragraph 19.d) above, which complains that the Tribunal was biased, the applicant has presented no evidence in support of this claim and I find that it is without merit. The test for whether an administrative decision maker is affected by a reasonable apprehension of bias is if a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.[19]
[19] Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 at [27]-[28].
On the material before me there is nothing in the Tribunal's decision, nor its conduct of the review, that is capable of giving rise to an inference of a reasonable apprehension of bias.
Remaining grounds of review
The applicant's affidavit sworn 12 April 2011 raises a further claim of bias on the part of the Tribunal. For the reasons set out at [26] above, this ground of review is without merit.
By grounds 2 and 3 of the applicant's judicial review application, his affidavit sworn 12 April 2011 and his amended application filed 14 June 2011, the applicant essentially reiterates the asserted factual fear of persecution in support of his claim for a protection visa, a claim that was found by the Tribunal to be not well-founded. The applicant has misconceived the role and function of this Court and the judicial review process. As noted above, the applicant's application to this Court can only succeed if he can establish that the Tribunal committed jurisdictional error. In the balance of his application filed on 18 April 2011 and in his amended application filed on 14 June 2011, the applicant fails to allege or point to any jurisdictional error in the Tribunal's decision.
I conclude that the applicant, both in his original application and in the amended application, fails to raise an arguable case for relief. I find that the applicant has failed to demonstrate an arguable case that the Tribunal committed a jurisdictional error.
It follows that the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules and I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the amount of $3,460 which I note is slightly above the amount most recently prescribed in the Court Rules. I have no difficulty in accepting that costs of that order have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis. In the circumstances I accept that costs should be fixed in the sum of $3,460 and I so order.
I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served by ordinary pre-paid post on the applicant at his last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 13 July 2011
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