SZTGS v Minister for Immigration
[2014] FCCA 468
•19 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 468 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 425, 425A, 426A, 441A, 441C, 476 Migration Regulations 1994 (Cth), r.4.35D |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 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 & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZTGS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2158 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 February 2014 |
| Date of Last Submission: | 19 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr M P Cleary |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 13 September 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3,332.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2158 of 2013
| SZTGS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised From Transcript)
I have before me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 September 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 August 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
Background
The applicant is a national of India. He arrived in Australia on 3 July 2012 as the holder of a temporary business visa. He applied for a protection visa on 26 July 2012 (Court Book – “CB” ‑ CB 1 to CB 26).
The applicant’s claims to fear harm were that although he was not a Muslim, that he had a relationship with a “Muslim girl”, which led to her pregnancy (CB 18.8). He claimed the situation “caused riots” and feared for his life (CB 19.6). This emanated from the girl’s family and the community, in particular the local Muslim community (CB 19.7).
The applicant was interviewed by the delegate (CB 52). The delegate comprehensively rejected the applicant’s factual account as to why he said he feared harm (CB 53 to CB 54).
The Tribunal
The applicant applied for review to the Tribunal on 3 January 2013 (CB 58 to CB 63). He was invited to a hearing, by a letter, addressed to the applicant at the address that he had provided to the Tribunal for the purposes of receiving correspondence in relation to the review. (CB 66). Given the applicant’s complaint raised today, which I will address later, it is important to note that the letter provided the date, time and venue for the hearing. The applicant did not attend the hearing, and there is nothing in the material before the Court to show that the applicant made any attempt to contact the Tribunal to advise of any difficulty in attending, nor, indeed, in seeking any adjournment (CB 71). That state of affairs was confirmed by the applicant before the Court today.
The Tribunal proceeded pursuant to s.426A of the Act to make its decision on what was before it ([18] at CB 78). In essence, the Tribunal found that, on what was before it, it could not reach the requisite level of satisfaction such that a protection visa must be granted (s.36(2) and s.65 of the Act) ([2] at CB 76 and [22] at CB 78 to [23] at CB 79).
Application Before the Court
The application before the Court contains the following grounds:
“1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from Muslim extremists, and not able to access effective protection. The Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicant at hearing.
2. The applicants satisfy the key elements of Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3. The Tribunal failed to investigate applicant’s claim, specially the grounds of persecution in India. Therefore, the Tribunal dated 19 August 2013 was effected by actual bias constituting judicial error.”
Before the Court
I note from the Court file that the applicant appeared in person at the first Court date in this matter on 27 November 2013. He was assisted on that occasion by an interpreter in the Hindi language. On that occasion, a number of orders were made by consent of the parties. Order 2 provided the applicant with the opportunity to file and serve any amended application giving complete particulars of his grounds. Order 3 provided that the applicant was to file any additional evidence by way of affidavit. Order 7, provided the applicant with the opportunity to file and serve any written submissions.
The matter was set down for a hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). This was appropriate, particularly due to the “formulaic” character of the grounds. The Minister’s submission to that effect gains strength when regard is had to the fact that the applicant did not attend the Tribunal hearing, yet almost all the grounds contained in his application appear to proceed on that basis.
In any event, the issue for the Court today is whether the application raises an arguable case for the relief sought. While the application does not indicate what exact relief is sought, I have proceeded on the basis that the applicant seeks the quashing of the Tribunal decision and its return to the Tribunal for reconsideration.
The applicant appeared in person at the hearing today. He was assisted by an interpreter in the Hindi language. Mr M P Cleary of counsel appeared for the Minister.
The applicant claimed that the reason he did not attend the Tribunal hearing was that he had been ill. The applicant submitted that he had received the letter of invitation to hearing that the Tribunal had sent to him, that he understood enough of the letter to understand that the Tribunal had invited him to a hearing and had provided a time, date and a place. However, the applicant also told the Court that he was unable to understand the remainder of the letter which explained, in his view, why he made no attempt to contact the Tribunal to advise the Tribunal of his difficulty in attending, nor to otherwise seek an adjournment of the hearing date.
I can only agree with the Minister’s submissions today that ultimately the applicant’s oral complaint to the Court today does not raise any arguable case for the relief that the applicant seeks. I note that the letter of invitation to the Tribunal hearing complied with all the relevant statutory and regulatory requirements. The terms of that letter make it plain that the Tribunal (CB 66):
“…will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The enclosed leaflet ‘Information about tribunal hearings’ contains important information about hearings and your rights.
Please read and complete the enclosed ‘Response to hearing invitation’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish the tribunal to consider. Any documents or written arguments sent to the tribunal should be in English or translated by a qualified translator.”
The letter later concluded with (CB 67):
“If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national inquiry line…”
Importantly, the letter also provides a relevant telephone number and states (CB 67):
“For language assistance, please contact the Translating and Interpreting Service”
The applicant told the Court today, albeit not in any evidentiary context, that he made some attempt to obtain translation of the letter from some unidentified person, but was not successful.
The applicant’s attempt to explain his absence from the Tribunal hearing was made for the first time before the Court today. As stated above, at the first Court date in this matter, a number of orders were made which, I am satisfied, were translated for the applicant at that time. This gave him various opportunities to put his legal arguments and any evidence in support before the Court. The applicant has done nothing in this regard.
Consequently, there is no evidence before the Court to support the applicant’s oral claims, in relation to his illness. That would make it difficult for him to raise an arguable case from these oral claims. But in any event, even if it was to be accepted that the applicant was ill at the relevant time, there are a number of additional elements that weigh against the applicant.
First, as the Minister’s counsel submitted, the applicant did, and was able to complete a “Response to the Hearing Invitation” form that had been enclosed with the Tribunal’s letter inviting the applicant to the Tribunal hearing, which the Tribunal letter had asked the applicant to complete and return (CB 69 to CB 70).
I agree with the Minister that, given the nature of the applicant’s responses to the various items that are set out in the Response to Hearing Invitation raise a strong argument that the applicant, contrary to his submission today, had understood the remaining parts of the letter of invitation to hearing. These included references to who would take part in the Tribunal hearing, whether any other person would be attending the hearing, and whether interpreters were required, or witnesses, and the like.
The applicant made a response to the Tribunal which indicated that he would attend at the hearing (CB 69). The applicant has provided no evidence to the Court to support his assertion now as to why he was unable to attend the hearing.
Importantly, there is nothing in the material before the Court to show that any attempt was made by the applicant to advise the Tribunal of any difficulty in attending. Even if the applicant’s submissions today were accepted, on this basis, he knew that a hearing was scheduled and the time and location of that hearing, I cannot see that any arguable case can arise from these circumstances where the Tribunal complied with all the relevant statutory and regulatory requirements in inviting the applicant to a hearing, pursuant to s.425 of the Act.
The letter put the applicant on notice of important matters relating to the processes that were connected to or attendant on the invitation and the conduct of the Tribunal hearing. The applicant responded that he would attend the Tribunal hearing. But there is nothing to show that he then contacted the Tribunal, or arranged for someone else to contact the Tribunal on his behalf, to advise of any subsequent difficulty in attending.
The Tribunal fulfilled its statutory obligation. In the absence of anything further, it was entitled, to proceed pursuant to s.426A of the Act, in the absence of the applicant, to consider the application before it. No arguable case arises from that applicant’s oral complaint today.
Consideration of the Grounds of the Application
Ground One
There appear to be a number of elements to the first ground of the application before the Court. First, that the Tribunal failed to consider an integer of the applicant’s claim. Namely, whether the applicant was at risk from “Muslim extremists”, and not able to access effective protection.
The complaint misconceives the statutory task set for the Tribunal, the nature of the Tribunal’s reasoning, and the actual claims the applicant made. The Tribunal is not required to make out an applicant’s case for him. In that sense, the Tribunal is only obliged to deal with claims expressly made and those which can be said to be clearly arising from the circumstances presented. (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 and see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26). As referred to above, the Tribunal is required to reach the requisite level of satisfaction that the applicant meets the relevant criteria for the grant of a protection visa before it must be granted (s.65 of the Act and relevantly s.36(2) of the Act, SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 (“NAST”) and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). On what was before it, the Tribunal could not reach this level of satisfaction. It explained why this was the case. No legal error is revealed in these circumstances. No arguable case is raised for the relief sought.
Second, as the Minister submits, contrary to the applicant’s complaint now there is no evidence before the Court that the applicant claimed to fear harm from “Muslim extremists”. His claim was that he feared harm from his girlfriend’s family who were a “Muslim conservative family”. He further claimed that his relationship caused “Hindu/Muslim riots” and that “Muslims are very aggressive and dangerous” (CB 19.6 and CB 47). At best, therefore, what can be said is that he claimed that he feared harm from the Muslim community generally. [There is an important and significant difference between the terms “Muslim extremists” and “Muslim community”. If the applicant’s complaint before the Court were to be accepted it would have the effect of saying that all in the Muslim community are “extremists”, as that term is generally understood.]
The Tribunal recorded the applicant’s claims in its decision record ([10] – [15] at CB 77). There is nothing to show that it overlooked or misunderstood the applicant’s claims. It simply could not reach the requisite level of satisfaction mandated by the statute before the visa must be granted.
Third, I agree with the Minister’s submission that it was difficult for the Tribunal to reach the requisite level of satisfaction in circumstances where the applicant did not attend the hearing. The Tribunal had already put the applicant on notice that on what was before it, it could not reach the requisite level of satisfaction and invited the applicant to a hearing for the purpose of explaining his claims and giving his evidence (CB 66 and NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287; NAST and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Fourth, ground one also appears to complain that the Tribunal should not have proceeded to making its decision given that it did not receive evidence from the applicant at a hearing.
The Tribunal was obliged to invite the applicant to a hearing pursuant to s.425 of the Act. It did so (CB 66). The letter of invitation complied with all of the relevant statutory and regulatory requirements (s.425, s.425A, s.441A, s.441C of the Act and reg.4.35D of the Migration Regulations 1994 (Cth) and included a statement to the effect of s.426A of the Act). I note in particular that it was sent by registered post to the last address for receiving correspondence as notified by the applicant (CB 61 and CB 66).
Further, the Tribunal received the applicant’s completed “Response to Hearing Invitation” form confirming his intention to attend the hearing, by facsimile on 13 August 2014 (CB 69).
As referred to above, there is nothing in the material to show that he contacted the Tribunal to seek an adjournment or otherwise advise of any difficulty in attending. In all the circumstances the Tribunal was entitled to proceed pursuant to s.426A of the Act. Ground one does not raise an arguable case for the relief sought.
Ground Two
Ground two asserts that the applicant satisfies the “elements” of the (in context, Refugees) Convention definition and that the Tribunal did not consider this.
Plainly the Tribunal did consider whether the applicant’s circumstances came within the relevant Refugees Convention definition. On what is before the Court, the ground is no more than an expression of grievance with the Tribunal’s conclusion, and not an assertion of legal error. This does not raise an arguable case for the relief sought.
Ground Three
Ground three asserts that the Tribunal failed to investigate the grounds of persecution in India and that this, therefore, reveals actual bias on the part of the Tribunal member.
There are a number of elements here. First, in the circumstances, it would appear that the reference to a failure to investigate is a reference to the Tribunal proceeding to a decision without “investigating” the claims at a hearing. If this is what is meant then what I have said in relation to ground one stands in answer.
If the applicant seeks to otherwise complain that the Tribunal should have made some investigation of the applicant’s circumstances in India, then there is no general duty on the Tribunal to make any such inquiry (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] per Heerey, Nicholson and Mansfield JJ).
Nor is this a case where it is can be said 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” (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]).
The allegation of actual bias in the absence of evidence (despite the opportunity to provide any evidence), cannot be said to raise an arguable case. The test for bias is well established (Minister for Immigration & Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). I note that in the absence of any other evidence, all that the applicant can hope to rely on is the Tribunal’s decision record alone. It is a rare case that bias can be made out with reference to the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
Bias is a serious charge that must be distinctly made and clearly proven (Jia Legeng at [69] per Gleeson CJ and Gummow J). In the current case the applicant alleges actual bias either because the Tribunal proceeded without a hearing, or failed to make an investigation into “persecution in India”. Having regard to the relevant circumstances, neither is a basis on which to found such a serious charge. No arguable case is raised.
Conclusion
In all, the application does not raise an arguable case for the relief, presumably, sought. The application should be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 10 March 2014
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