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SZODX v Minister for Immigration & Anor [2010] FMCA 299 (3 May 2010)
Last Updated: 3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZODX v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of decision of Refugee
Review Tribunal - applicant elected not to attend Tribunal hearing –
applicant
lost entitlement to appear at Tribunal hearing – applicant
seeking impermissible merits review – Tribunal considers all
claims
– no obligation to undertake inquiries – Tribunal could not be
satisfied on what was before it – no jurisdictional
error –
application dismissed. |
Migration Act 1958 (Cth), ss.36, 65, 91R,
422B, 424, 424A, 424AA, 425, 425A, 426A, 427, 476, 441A, 441CMigration
Regulations 1994 (Cth), regs.4.35D
|
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
REPRESENTATION
Appearing for the Respondents: |
Ms B Rayment
|
Solicitors for the Respondents: |
Sparke Helmore
|
ORDERS
(1) The application made on 11 February 2010, and
amended on 9 April 2010, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of
$3,500.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATSYDNEY
|
SYG 291 of
2010
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
- This
is an application made under the Migration Act 1958 (Cth) (“the
Act”) on 11 February 2010, and amended on 9 April 2010, seeking review of
the decision of the Refugee Review
Tribunal (“the Tribunal”), made
on 28 January 2010, which affirmed the decision of a delegate of the respondent
Minister
to refuse the grant of a protection visa to the
applicant.
Background
- The
applicant is a citizen of India who arrived in Australia on
26 July 2007, and applied for a protection visa on 4 September 2009.
The Minister has put before the Court a bundle of relevant documents (the Court
Book – “CB”). This application
is reproduced at CB 1 to
CB 29 with annexures.
Claims to Protection
- The
applicant’s claims to protection were initially contained in a statement
attached to his protection visa application (CB
26 to CB 27).
- He
claimed to fear persecution from the “upper three classes” of
Hindus. He belonged to the Harijan class of Hindus, which
was described as a
“low caste”, which he referred to variously as a “social
group” and a “race”.
His father was a farmer, but was
discriminated against because of his membership in the Harijan caste.
- The
applicant claimed that his father’s farm was “boycotted” by
the “upper classes”. The applicant organised
activities in protest.
He formed a “social committee” to uphold rights for low caste
Hindus. He protested against the
treatment of low caste Hindus, wrote a
“charter of demands”, and advocated for better employment
opportunities for them.
- He
claimed that when the RSS and BJP, which I understand to be political parties,
and described as “Hindu hard liners”,
came to power, the fundamental
“principles of Hinduism” became prevalent. The applicant claimed
that if Harijans protested
against their treatment, they risked being burned
alive or having their houses set on fire.
- The
applicant claimed that he was “roped into many false cases”, beaten
by upper class Hindus, unlawfully detained, discriminated
against, and that he
would be denied employment opportunities if he were to return. He sought
protection in Australia because of
the discrimination and harm that he said he
faced on the basis of his race and belonging to a particular social group.
The Delegate
- The
Minister’s delegate invited the applicant to an interview to be held on
27 November 2009 (CB 30 to CB 31), and a rescheduled
interview to be
held on 30 November 2009 (CB 39.5). The applicant did not attend at either
scheduled time.
- The
delegate was unable to be satisfied on the material before him that the
applicant met the relevant criterion for the grant of
a protection visa. This
being that the applicant satisfied the definition of “refugee” as
set out in Article 1A(2) of
the UN Refugees Convention. The reason for this was
that the delegate found the applicant’s claims as set out in the statement
were “general and unsubstantiated” and had not been tested at an
interview.
- On
that basis, the delegate refused to grant a protection visa.
The Tribunal
- The
applicant applied for review by the Tribunal. The application appears to have
been received by the Tribunal on 15 December 2009
(CB 41 to CB 44). No
additional claims were made to the Tribunal. The applicant’s address for
receiving correspondence from
the Tribunal was given as a post office box number
at Guildford, New South Wales (CB 43). In his application he elected that
correspondence
be sent to him at that address. He did not nominate or authorise
any other person to receive correspondence on his behalf.
- By
letter dated 16 December 2009 the Tribunal wrote to the applicant acknowledging
the application. On the evidence before the Court,
it appears to have been sent
by prepaid post to the applicant (CB 45). In particular, in that letter the
Tribunal advised the applicant
that he must immediately advise the Tribunal of
any change of contact details, and that if he wanted to put any material or
written
arguments to it, he should do so as soon as possible.
- On
the evidence available to the Court I note that the letter was sent by prepaid
post and directed to the address for service provided
by the applicant
- By
letter dated 5 January 2010 the Tribunal again wrote to the applicant. It
invited him to appear at a hearing before it scheduled
for 3 February 2010
(CB 46 to CB 47). Again, the letter was sent by prepaid post to the
address for receiving correspondence. The
Tribunal told the applicant in this
letter that it had considered the material before it, but could not make a
decision favourable
to him. It advised the applicant that he should contact the
Tribunal if he were unable to attend, and noted the consequences of his
non-attendance, being that it may proceed to make a decision on the review
without taking any further steps to facilitate his attendance.
Importantly, the
letter enclosed a “Response to Hearing Invitation” form and directed
the applicant to complete and return
that form to the Tribunal by
21 January 2010.
- It
appears that the applicant responded to the Tribunal by returning the completed
form. It was received by the Tribunal on 25 January
2010. It was signed by
the applicant and it was dated 20 January 2010. Importantly, In response to the
question: “Will you
take part in the Tribunal hearing scheduled for 3
February 2010?”, the applicant indicated: “No” (CB 48 to
CB 49).
- The
Tribunal then proceeded to make its decision on 28 January 2010.
- The
Tribunal found that it was not satisfied as to the applicant’s core
factual claims, including his claim to be a Harijan,
because his protection visa
application contained “a number of vague, unsubstantiated
assertions”. Further, (at [32]
of the Tribunal’s decision record at
CB 56):
- “This
material does not allow the Tribunal to establish the basic facts of the
applicant’s claims, to asses their veracity,
or to consider whether they
form the basis for a well-founded fear of Convention-related persecution.”
- The
Tribunal specifically found and made reference to particular country information
to which the applicant had referred. Because
of the finding that the applicant
was not a Harijan, it found that it could not assess whether this country
information was relevant
to his circumstances or whether it showed that he had a
well founded fear of Convention related persecution. This was because the
Tribunal was not previously satisfied that the applicant’s factual claims
were made out ([34] at CB 56).
- In
all, therefore, the Tribunal not being able to satisfy itself that the applicant
met the criterion set out in s.36(2), that is, that the applicant met the
definition of “refugee” as set out in the UN Refugees Convention,
affirmed the delegate’s
decision to refuse a protection visa to the
applicant.
Application to the Court
- The
applicant has put both an application and then, subsequently, an amended
application before the Court. There are three, numbered
grounds raised in the
amended application.
- I
agree with the written submissions put before the Court by the Minister’s
solicitors that much of what the applicant has put
in this application, strictly
speaking, is more properly described as submission or argument rather than
proper pleading. Nonetheless,
I will look at it, generally, in the sense of
complaints made by the applicant.
- I
note also that the applicant has filed an affidavit of 3 February 2010. This
was filed at the same time as the making of the originating
application to the
Court and asserts that the Tribunal did not consider country information and
what he describes as a “Statement
of his Claim”.
Hearing before the Court
- At
the hearing before the Court the applicant appeared in person. An interpreter in
the Hindi language was present, but the applicant
displayed a high level and
command of the English language and was able to conduct his affairs before the
Court in that language.
I am satisfied that he had no relevant language
difficulties. I indicated to the applicant that if he had any such difficulties,
he should refer to the interpreter. Ms B Rayment appeared for the Minister.
- Before
the Court, the applicant, unfortunately for him, had one difficulty in
addressing what is, of course, the relevant and critical
issue in matters of
this type. That is, whether the Tribunal’s decision was affected by
jurisdictional error, such that this
Court would then be required to consider
whether the matter should be returned to the Tribunal for reconsideration. The
difficulty
was the inability to understand or accept this.
- The
applicant, variously, made statements relating to the problems that he faced in
India, and that he would face if he were to return
to India. He submitted to the
Court that he had just called colleagues in India, who were in a position to
send more information
about that matter.
- The
applicant explained his response to the Tribunal and invitation to hearing and
his decision to not attend in terms of having discussed
this with friends. I
took that to mean friends here in Australia in the community. He was under some
misunderstanding, or some misapprehension,
that it was not fatal to his claims
not to attend, and that there would be some future opportunity for him to submit
something in
writing to the Tribunal.
- Ultimately,
I understood the applicant’s complaint about the Tribunal, and for that
matter, he also made the same complaint
about the delegate’s decision, to
be that the Tribunal should have found him to be a refugee based on what he had
written in
his statement, and in light of country information to which he had
referred in his statement, and to which the delegate had made
some reference,
which dealt with the difficult situation faced by lower-caste people in
India.
Consideration
- The
applicant applied for a protection visa. He set out what can, at best, be
described as an outline of claims in an attached statement.
He was invited to
attend an interview with the delegate on two occasions. This would have been
the opportunity for the applicant
to explain and expand on his claims. Without
any explanation proffered to the delegate, or before the Court, the applicant
did not
attend.
- The
delegate refused the application on the basis that he could not be satisfied on
what was before him, and particularly given that
the applicant failed to attend
at the interview to further explain his claims, that the applicant met the
definition of “refugee”,
as set out in Article 1A(2) of the UN
Refugees Convention. Such satisfaction being a critical criterion for the grant
of the visa
(ss.36(2) and 65 of the Act)
- The
applicant then applied to the Tribunal for a review of that decision. He was
invited to a hearing before the Tribunal. The Tribunal
advised that, on what
was before it, it was unable to make a favourable decision to the applicant. He
was told that the hearing was
his opportunity to give evidence and present
arguments relating to the issues in his case.
- The
applicant responded by indicating that he did not want to attend the hearing.
This was done in the full knowledge that the Tribunal
would then proceed to make
its decision. His response, that is, the negative response, was not explained in
any way to the Tribunal.
There is no evidence before the Court that the
applicant made any approach to the Tribunal to explain his not wanting to attend
the
hearing or to obtain any further information.
- It
is important to note that, before the Court, the applicant explained that after
discussion with “friends”, he was of
the view that the hearing was
not as important a step as it subsequently and clearly turned out to be. But
that there would be some
further opportunity afforded to him to put material in
writing to the Tribunal.
- I
must emphasise that there is nothing before the Court to show that the applicant
sought any such opportunity. Further, what is also
clear is that the
Tribunal’s letter does not invite any such opportunity. To the contrary,
the Tribunal’s letter makes
it very clear that, if the applicant were to
fail to attend the scheduled hearing, that the Tribunal may then make a decision
without
taking any further action or to enable the applicant to appear before
it. That is a very clear statement. The applicant preferred
the advice of his
“friends” in Australia. Unfortunately for the applicant, what may
have been a miscalculation on his
part does not reveal any error, let alone
jurisdictional error, on the part of the Tribunal.
- It
must be said that it is very difficult to conceive that in all of these
circumstances the applicant could have genuinely expected
any other outcome
other than the ultimate decision arrived at by the Tribunal. As has been
described by a Full Federal Court in NAVX v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCAFC 287, the inevitable
consequence of the applicant’s action, or rather inaction in not attending
the Tribunal hearing, was that the
Tribunal refused the application. As it had
indicated that it would most likely do, given that it had already said that it
was unable
to make a favourable decision without the applicant attending at a
hearing.
- On
the evidence available to the Court I note that the Tribunal’s letter of
invitation to hearing appears to have met all of
the relevant statutory and
regulatory requirements. The letter was sent to the applicant at the address
provided by him for that
purpose. It invited him to a hearing pursuant to s.425
of the Act. It complied with s.425A by giving notice of the time, date, and
place for the hearing. The letter was given by one of the methods set out in
s.441A(4) of the Act.
- There
is no complaint by the applicant before the Court that it was not dispatched
within the relevant three working days of its date.
The Tribunal gave a period
of time to the applicant and complied with the prescribed period, that is, the
notice period that is
set out in the relevant regulation, reg.4.35D of the
Migration Regulations 1994 (Cth). By virtue of s.441C(4), the applicant
is taken to have received the letter seven working days after the date of the
document.
That is, 15 January 2010. It is of particular note that the
applicant’s response to hearing is dated 20 January 2010, which
accords
with that sequence of events.
- I
note also that the letter contained a statement to the effect of what is
required and set out in s.426A of the Act.
- In
all, therefore, the letter of invitation complied with all of the relevant and
statutory requirements.
- The
applicant plainly received this letter from the Tribunal. The applicant has put
nothing before the Court to deny that proposition.
In any event, it would be
difficult to do so, given his return of the “Response to Hearing
Invitation” form. In light
of the Tribunal’s warning contained in
its letter, his negative response when viewed in light of s.425(2)(b) and
s.425(3) means, as submitted by Ms Rayment before the Court, that the effect was
not just that the applicant could be said to have failed
to attend, but through
his action in indicating that he did not wish to attend, the applicant lost his
entitlement to appear before
the Tribunal. This alone created the circumstance
and basis to enable the Tribunal to proceed to a decision without taking any
further
action. I note and apply relevant authority relied on by the Minister in
this regard (SZIMG v Minister for Immigration & Citizenship [2008]
FCA 368 per Rares J at [21]-[22]).
- On
what is before the Court, the Tribunal’s obligation to invite the
applicant to a hearing was discharged. The applicant, in
the circumstances, can
plainly be taken to have consented to the Tribunal deciding the review without
his appearance at a hearing.
I again note relevant authority relied on by the
Minister, which is clearly authority to direct how this Court is to view these
matters
(Minister for Immigration & Multicultural & Indigenous
Affairs v SZFML & Anor [2006] FCAFC 152 per Spender, French, and Cowdroy
JJ at [58]).
- The
applicant received the letter of invitation. There is no complaint now that he
did not do so. The response to hearing was assessed
by the Tribunal. In its
decision record, it reveals that it was satisfied that it had been completed and
signed by the applicant
(CB [27] of the Tribunal’s decision record).
Nor does the applicant now assert that the response was not completed by him.
I
cannot see error in the Tribunal’s relevant reasoning in this regard. Nor
can I see, in the circumstances, that there was
any duty on the Tribunal to make
further inquiries as to the applicant’s non-attendance.
- Before
the Court today, the applicant made some reference to having received a
telephone call and some message being left on “voicemail”.
It was
subsequently clarified that this was not a reference to any action taken by the
Tribunal or a Tribunal officer, but related
to the invitation to the interview
before the delegate. Therefore, it is not a matter that could show error on the
part of the Tribunal.
- The
applicant’s grounds and complaints before the Court, in essence,
misunderstand the Tribunal’s decision and the statutory
context in which
it is obliged to operate. The relevant statutory scheme, as I have repeatedly
said (ss.65 and 36(2) of the Act)
provides that a protection visa must be
granted if the Tribunal reaches a requisite level of satisfaction such that, in
effect, the
applicant meets the definition of refugee as set out in article
1A(2) of the Refugee’s Convention. For Australian purposes,
this
definition must be read as qualified by section 91R of the Act. It is the case
that if such a level of satisfaction is not
reached, then a refusal 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 Affairs v VSAF of
2003 [2005] FCAFC 73).
- 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 have been aware also of the need to attend the
hearing. As I mentioned
earlier, the applicant’s submission before the
Court, that he thought that some other opportunity would have presented itself
to him, is not supported by any of the material that has been put before the
Court.
- Without
explanation to the Tribunal, the applicant did not attend the hearing. The
Tribunal’s finding was plainly and reasonably
open to it in the
circumstances that were put before it. That is, as had been found by the
delegate, that on what was before it it
could not reach the requisite level of
satisfaction mandated by the Act. Nor can I see error in the Tribunal’s
description
of the applicant’s claims as being vague, unsubstantiated
assertions.
- The
applicant’s grounds, and generally his complaint, can only properly be
seen in the circumstances as a request for this Court
to engage in impermissible
merits review (Minister for Immigration, Local Government and Ethnic Affairs
v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
- Turning
now to the grounds as stated in the amended application.
Ground One
- In
ground one of the amended application, the applicant asserts that he belongs to
a lower class of Hindus in India and that for that
reason he suffered
discrimination, harassment and an extreme degree of hatred by upper class
Hindus.
- The
Tribunal found that it could not be satisfied the applicant was of lower caste.
It could not be satisfied as to any of the applicant’s
relevant factual
claims because they were vague and unsubstantiated and because of his failure,
in the sense of his non-attendance
at the hearing. Further, his failure to
provide any other material to the Tribunal. It was unable to reach the requisite
level of
satisfaction for those reasons.
- I
should note, incidentally, the applicant’s complaint made before the Court
that he had some expectation that there would be
some opportunity to make
written submissions for the Tribunal. In its first letter to the applicant dated
16 December the Tribunal
did advise the applicant that if he wished to provide
material or written arguments for the Tribunal to consider: “... you
should do so as soon as possible” (CB 45).
- In
any event, on any plain reading of the subsequent letter of
5 January 2010, it is quite clear that the consideration of the
applicant’s
application had moved along to the point where the Tribunal
made it very clear that it could not make a favourable decision, and
invited the
applicant to a hearing for the very specific purpose of giving his evidence and
making his arguments and enhancing his
claims. There is nothing to show that
even if the applicant was following the advice of “friends” he made
any attempt
to tell the Tribunal he wanted the opportunity to put something to
it in writing.
- In
all these circumstances, ground one, by merely restating the claims that were
generally made before the Tribunal, does not rise
above a request for
impermissible merits review. It therefore does not succeed in showing
jurisdictional error on the part of the
Tribunal.
Ground Two
- Ground
two asserts that the applicant is an “active member” of a
“social group”, being one that advocates
for the rights of lower
caste Hindus. The applicant complains that it is the “religious duty of
the upper class Hindus to hate
those from the lower class of the Hindus”
and that these “upper class Hindus” have violated human rights. He
claims
to have been arrested and physically assaulted, that “other office
holders”, presumably of this group that he had put
together, were
harassed, and that the authorities would not protect him. He again repeats his
claims that he put to the Tribunal.
- As
in the case of ground one, this also is an attempt to re-agitate claims and,
indeed, the truth of the claims made before the Tribunal.
Again, this Court
cannot assist the applicant in this regard (Wu Shan Liang).
Ground Three
- In
ground three the applicant makes various complaints, but I can best group them
as:
- The
Tribunal did not address “the issues as submitted by the applicant in his
written claims, rather the RRT discussed other
issues.”
- The
Tribunal failed to consider “the four key elements of being a
refugee” and the “law for the time being in force
as it is laid down
in the hand book”. It did not consider “whether the applicant had a
well founded fear of persecution
...” and failed to take into
consideration the applicant’s membership of a social group, and that he is
a “person
of importance”.
- In
dealing with the first complaint in ground three, I note that a failure to deal
with an integer of an applicant’s claims
is jurisdictional error. But the
Tribunal is not required to consider a claim not made, nor one which cannot be
said to clearly arise
on the material before the Tribunal (Htun v Minister
for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287, see
also Applicant WAEE v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration
& Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004)
144 FCR 1).
- But
it is also the case that neither in any of the documentation put before the
Court, nor otherwise at the hearing before the Court,
did the applicant point to
anything from which it can be said that the Tribunal considered “other
issues”. The Tribunal
specifically rejected all the applicant’s
claims to protection because it could not be satisfied on the “limited
evidence
before it” and the lack of “further details and
clarifications” ([33] at CB 56). The Tribunal does not have to
uncritically accept any, or even all, of what an applicant says (Randhawa v
the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA
1253; (1994) 124 ALR 265).
- The
second complaint in ground three appears to mirror and expand on the bare
assertion in ground one of the originating application
that the Tribunal failed
to accept that the applicant satisfied the relevant criterion and the
“law” set out by the UNHCR.
I took this, in the general sense, to be
a reference to the relevant UN Refugees Convention. One aspect of this complaint
again seeks
impermissible merits review, and does not succeed for that reason.
That is, it challenges the findings of fact made by the Tribunal.
- The
second aspect of this particular complaint may be seen as an allegation that the
Tribunal misunderstood, or misapplied, the relevant
law. In this regard, it must
be said that it is not clear what the applicant means by the reference to
“the law ... as it is
laid down in the hand book of being a refugee issued
by the UNHCR”.
- If
what is meant by this is the UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and the 1967 Protocol
Relating
to the Status of Refugees (Geneva, 1979, re-edited 1992)
(“the Handbook”) issued by the office of the UNHCR, then while this
document may be seen
as a useful guide, it is not binding authority in
Australia, except for those parts of the Handbook that have been specifically
adopted
by the Courts in Australia and, thereby, gain such status. See
Minister for Immigration & Multicultural Affairs v Mohammed [2000]
FCA 576 for the proposition that the UNHCR handbook has no binding force in any
event in international law. Further, and in particular, see
such authorities as
Semunigus v The Minister for Immigration & Multicultural Affairs
[1999] FCA 422, Shah v Minister for Immigration & Multicultural
Affairs [2000] FCA 489, and, indeed, Eshetu v Minister for Immigration and
Ethnic Affairs [1997] FCA 19; (1996) 142 ALR 474 (“Eshetu”) at first
instance that support the propositions that I have just enunciated. I note
further that that particular point arising
also in Eshetu was not
addressed by any of the appellate Courts.
- While
Australia is, of course, a signatory to the Convention and this, clearly,
imposes a number of obligations on Australia, the
granting of protection to any
claimant is for Australia’s domestic law to set out. In this regard, the
Tribunal did set out
its understanding of the relevant law applicable to this
case in its decision record. (See [5] at CB 52 to [17] at CB 54.)
- There
is nothing to suggest that this was not the “law for the time being in
force”. The Tribunal properly noted that
the relevant time for the making
of the assessment as to a person’s refugee status is with regard to the
facts at the time
of the decision ([17] at CB 54).
- The
Tribunal was ultimately unable to be satisfied that the applicant had a well
founded fear of persecution because it had only “insufficient
information” before it and the evidence was “limited”. The
Tribunal properly outlined the aspects of the applicant’s
claims of which
it required greater detail (at [32]). Simply, the applicant did not attend a
hearing to provide such detail, and
it could not be satisfied on what was before
it that his claims were true.
- Further,
in answer to the complaint made by the applicant now, the Tribunal did consider
the applicant’s claims to have been
of Harijan caste, to have been
discriminated against and to have suffered harm for this reason. It specifically
considered the social
committee that he said that he had formed. The simple fact
of the matter is that it required further detail and particulars of these
matters before it could be satisfied that these claims could lead to the
requisite level of satisfaction. No error is revealed in
this regard.
- I
note, further, in ground two of the originating application, that the applicant
complains that the Tribunal failed to consider his
evidence given by “way
of submission”. In the circumstances, this can only be a reference to his
written statement.
I note again, in the circumstances, the applicant’s
expectation stated before the Court that he would have a further opportunity
to
make a written submission to the Tribunal. I have already dealt with this. Nor
can it be said that the applicant gave any evidence,
as that term is understood
for the purposes of the Act, and as it relates to the Tribunal. Noting, of
course, that the Tribunal is
not bound by any formal rules of evidence. What is
left is simply the applicant’s written statement, already made as an
attachment
or accompanying his application for a protection visa.
- As
I have already referred to previously, the Tribunal did not fail to consider
what the applicant said in his statement. It set out
the applicant’s
claims in its decision record in a comprehensive extractive fashion. It
addressed each aspect of these claims
and noted those aspects in respect of
which it had “insufficient information”. (See [32].)
- The
applicant’s ground again seeks impermissible merits review. Again, no
error is revealed.
Other Complaints
- I
note also that ground two in the originating application asserts a denial of the
principles of natural justice. To the extent that
this is some reference to such
principles at common law, then such a complaint does not succeed. This is a case
to which s.422B of
the Act applies, making the matters set out in Division 4 of
Part 7 of the Act the exhaustive statement of the natural justice hearing
rule, of course, absent the matter of bias (Minister for Immigration &
Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at
[59]- [67], SZCIJ v Minister for Immigration & Multicultural Affairs
[2006] FCAFC 62 at [8], SZFDE v Minister for Immigration &
Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48], Minister for
Immigration and Citizenship v SZMOK [2009] FCAFC 83).
- As
already set out above, the Tribunal complied with all of its relevant statutory
and regulatory requirements and relevantly, those
requirements flowing from
ss.425 and 426A of the Act. I note in particular that ss.424A and 424AA were not
engaged in these circumstances. Nor, for that matter, was
there any enlivening
of any obligation or indeed any action taken under ss.424 or 427. This complaint
also does not succeed in showing jurisdictional error on the part of the
Tribunal.
- For
the sake of completeness, I note that in his affidavit accompanying his
originating application, the applicant complained that
the Tribunal did not
consider country information and his statement of claim. Most aspects of this
complaint have already been dealt
with. I understood the essence of the
applicant’s complaint before the Court to be that he had put his claims in
his statement
of claim initially to the delegate and ultimately to the Tribunal
and that in that he had made reference to country information.
In particular,
human rights organisation reports and US government reports. The
applicant’s complaint, in a nutshell, is that
having made his claims,
which made references to relevant country information, the Tribunal should have
found that the applicant
satisfied the definition of refugee.
- Before
the Court the applicant confirmed that the reference to country information as
being a reference to this information to be
obtained from human rights
organisations and the US country information. The applicant’s claim was
that such sources would
support his claim of harm at the hands of higher caste
Hindus. The difficulty again for the applicant is that this misconceives the
Tribunal’s reasoning. The Tribunal rejected the applicant’s factual
account to have suffered such harm in the past because
the claims as they were
presented lacked substance.
- As
I have already said, the determinative matter in this case was that the
applicant’s election not to attend at the hearing
left his statement in an
unsatisfactory state. The delegate, initially, and the Tribunal, subsequently,
could not form the requisite
level of satisfaction, to accept that his claims as
stated, and including references to country information, were such as to satisfy
that the applicant had a well founded fear of persecution. The applicant clearly
would have been on notice of this following the
delegate’s decision.
- In
these circumstances, there was no obligation on the Tribunal to consider any
independent country information. I cannot see error
in this regard. The
circumstances of the case as it developed before the Tribunal were that the
Tribunal was never presented with
the situation where it had to make a choice or
to weigh country information. Such choice about the use of country information,
and
the weight to be accorded, in any event as the Minister submits, is for the
Tribunal itself to determine. (See NAHI v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCAFC 10.)
- The
important point here is that the applicant made his claims, the Tribunal put him
on notice that it could not make a favourable
decision, and could not reach the
requisite level of satisfaction. Matters of country information were not
relevant, given that the
Tribunal was unable to be satisfied beyond the mere
unsubstantiated and bare matters put by the applicant in his one and only
statement.
- Nor
specifically was there any obligation on the Tribunal to make further inquiries
in this regard. The applicant had the opportunity
to have pressed such matters
and the need for any further inquiry at a hearing, or even to have submitted
information to enhance
his claim. He did neither. It may be said there is no
general obligation on the Tribunal to make further inquiries. I note in this
regard the Minister’s reliance on Minister for Immigration &
Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR
12. In any event, this is not a case where there are any special or other
circumstances in existence to have compelled any inquiries
of this sort.
- The
complaint in the affidavit that he had genuine fear for his life again seeks
impermissible merits review. The complaint that the
Tribunal did not take this
into account is also based on a misconception of the Tribunal’s reasoning.
The Tribunal clearly
assessed what little was before it against the question of
whether the applicant had a well founded fear of persecution for a Convention
reason. It was obliged to be satisfied that, on what was before it, the
applicant met the relevant test. It could not do so, and
it gave reasons for
this. In the circumstances, again, no relevant error is revealed.
- Finally,
there is a reference in the applicant’s affidavit to: “Moreover, the
country informations were not taken only
to the extent which suits the
decision-makers of the primary stage.” That is, the Minister’s
delegate. It is not clear
what exactly the complaint is here. At best, I
understood the applicant before the Court to explain that this was a complaint
that
the delegate did not look to country information, and did not take account
of the country information. At best, therefore, this may
be understood as a
complaint that the delegate did not consider or favourably apply this
information to what he had claimed.
- If
this is a complaint about the delegate’s decision then, quite clearly,
that decision is a “primary decision”
for the purposes of the Act.
This Court has no jurisdiction to review such a decision (s.476 of the Act).
- If
this is, as the Minister suggests in submissions, a complaint that the delegate
was selective or somehow deficient in the use of
country information, then that
also is a misconception of the delegate’s reasoning. The delegate, like
the Tribunal, was unable
to reach the requisite level of satisfaction, given
what the applicant himself had put before him, and the failure to attend the
interview.
- In
any event, again, as the Minister submits, even if some defect of this type
exists in the delegate’s decision, and it must
be said that none is
evident, it would be cured by the Tribunal’s decision. I refer here and
rely also on the authorities cited
in the Minister’s written submissions
(Wu v Minister for Immigration & Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294,
Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100
FCR 495, Zubair v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCAFC 248, and Minister for Immigration &
Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58).
- In
all, the applicant’s complaint in this regard appears to be that having
made a general statement of his claims which, as
I said, at best can be
described as an outline of alleged circumstances, the Tribunal and, for the
matter, the delegate, should have
seen, in light of some general but, it must be
said, unspecified references to country information, beyond the general
reference
to human rights reports, and US reports, that the applicant had a well
founded fear of persecution even in the absence of any substance
provided by him
to support his claims.
- As
I have already said on a number of occasions, this misconceives the task before
the Tribunal and misrepresents the approach taken
by the Tribunal and the
finding made by the Tribunal. In the absence of any compulsion to make further
inquiries in the circumstances,
and in circumstances where the applicant had
been invited to attend a hearing for the purpose of providing the very detail
which
the applicant says the Tribunal should have somehow discerned for itself,
and in circumstances where the applicant elected not to
attend the hearing, the
Tribunal was entitled to proceed in the fashion that it did.
- I
cannot see error such that this complaint can succeed. It is unfortunate that
even before the Court, the applicant emphasised that
he was still in contact
with colleagues to send more information about the situation in India. It is
unfortunate in the sense that
the applicant appears not to have understood that
the opportunity for him to have put such information and argument and to have
pressed
his claims has now been lost.
- Given
the way that the applicant conducted his case before the Court, I should note
that he confirmed that he had had access to legal
advice from the panel lawyer
who had been assigned to him under the “RRT Legal Advice Scheme”
administered by the Court.
The fact that the applicant unfortunately relied on
what he was told by “friends” may have been a miscalculation on his
part, and it may be, in terms of the outcome an important and quite costly
miscalculation. But whatever it was it does not reveal
legal error on the part
of the Tribunal.
Conclusion
- For
the applicant to succeed before the Court today, the Court would need to discern
jurisdictional error, at the very least, on the
part of the Tribunal. No such
error has been revealed. For that reason, the application, as amended, is
dismissed.
I certify that the preceding eighty-five (85)
paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 31 May 2010
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