SZOKD v Minister for Immigration & Anor [2010] FMCA 639 (19 August 2010)

Last Updated: 4 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKD v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 639

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it breached s.424A of the Migration Act 1958, failed to make enquiries of the applicant, failed to postpone making its decision when the applicant failed to attend the Tribunal’s hearing, failed to comply with pt.7 of the Migration Act, failed to give the applicant a real and meaningful invitation to the Tribunal hearing, made a decision without having held a hearing, demonstrated a lack of bona fides – matter turns on its own facts.

Migration Act 1958, ss.424A, 426A, 425, 425A, 430, 474 Migration Regulations 1994, reg.4.35D

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant:

SZOKD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1025 of 2010

Judgment of:

Cameron FM

Hearing date:

19 August 2010

Date of Last Submission:

19 August 2010

Delivered at:

Sydney

Delivered on:

19 August 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $3,600.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1025 of 2010

SZOKD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India and claims to be a Shia Muslim. He claims that, while in India, one of his relatives attacked and killed a Sunni Muslim man. He claims that the victim’s brother, believing the applicant to also be involved, has threatened to kill him in retaliation.
2. The applicant claims to fear persecution in India because of his religion and because of the actions of his relative.
3. After his arrival in Australia on 26 February 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 7 January 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
4. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
5. For the reasons which follow, the application will be dismissed.

Background facts

6. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-6 of the Tribunal’s decision. I now summarise relevant factual allegations:
   1. the applicant is a Shia Muslim. In Hyderabad, his home town in India, there are always conflicts between Shia Muslims (who are in the minority) and Sunni Muslims (who are in the majority);
   2. the political party in power in Hyderabad is the All India Majlis Itehaadul Muslimeen (“AIMIM”), a Sunni political party. They always involve themselves in Shia/Sunni conflicts;
   100. on 13 June 2006 one of the applicant’s relatives killed a man following a dispute over a property matter. The man was a Sunni Muslim. The applicant was present during the incident but was unable to stop his relative;
   4. in July 2006 the victim’s older brother (“MK”) killed the applicant’s relative in a revenge attack. MK has also accused the applicant of being involved in his brother’s murder;
   5. the “main big leaders” of the AIMIM have threatened revenge against the applicant, saying that they will kill him;
   6. the police in Hyderabad, working under the influence of the AIMIM, believe him to be involved in the murder and are framing a case against him;
   7. he tried to go into hiding but “they” have strong links and knew where he was; and
   8. he will be killed if he returns to India. He parents have told him to stay in Australia.

The Tribunal’s decision and reasons

7. By letter dated 24 February 2010 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 31 March 2010 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. The applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear despite having earlier advised the Tribunal, when he returned to the Tribunal a completed “Response to Hearing Invitation” form, that he would. In the circumstances, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it. Section 426A of the Act empowered it to do this.
8. In its decision, after discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person 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”). In reaching this conclusion the Tribunal noted that the particulars of the applicant’s claims as set out in his protection visa application were not sufficient to enable it to establish the relevant facts. Further, because he did not attend the hearing, the Tribunal was unable to explore the detail or truthfulness of the applicant’s claims. Consequently, the Tribunal could not be satisfied that any of those claims were true.

Proceedings in this Court

9. The grounds of the application commencing these proceedings were pleaded as follows:
   • (1) The Tribunal made a jurisdictional error that the Tribunal did not comply with s.424A of the Migration Act 1958 (the Act). The Tribunal had the opportunity to read the statement of claim of the applicant (please see page 4 & 5 of the RRT decision) and the Tribunal could have asked the applicant any explanation if it wanted to assess the applicant’s claim.
   • (2) The Tribunal made a jurisdictional error when the Tribunal did not use its power under section 426A(2) of the Act. The Tribunal had the power to reschedule the hearing date or sent a further letter to provide more information within certain period of time but the Tribunal did not do that which is wrong use of discretion on the part of the Tribunal.
   • (3) The Tribunal failed to comply with the part 7 of the Act, the Tribunal did not make a decision according to the section 430 of the Act, and the Tribunal did not go through the available information for decision.
   • (4) The Tribunal made a jurisdictional error because the Tribunal did not assess the applicant’s claim and the Tribunal did not want to assess that because the Tribunal did not want to use its power given under part 7 of the Act.

Breach of s.424A

10. The first allegation made in the application is particularised in the following terms:
    • (i) As the applicant did not attend an oral hearing, his claim could not be tested by the Tribunal (please see paragraph-33 of the RRT decision).
    • (ii) There are insufficient particulars as to the detail of the applicant’s claim to enable the Tribunal to establish the relevant facts (please see paragraph-34 of the RRT decision).
    • (iii) Because he did not attend a hearing the Tribunal has been unable to explore the detail of his claims (please see paragraph-34 of the RRT decision).
11. To the extent that these particulars refer to facts and circumstances, they refer to deficiencies in the applicant’s case caused by his absence from the Tribunal’s hearing and to conclusions and observations which the Tribunal expressed in connection with those deficiencies. None of these matters amounts to “information” as that term is understood in the context of s.424A. As the High Court has said in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190:
    • Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
      • does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
    • If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ)
12. In addition to alleging a breach of s.424A, the first ground of the application also alleges that the Tribunal could have asked the applicant for an explanation of his claims. This assertion implies some failure on the part of the Tribunal by reason that no such enquiries were made. However, the Tribunal has no general duty to make enquiries and the circumstances of this case do not suggest that the absence of enquiries by the Tribunal of the applicant amounted to a constructive failure to exercise jurisdiction or a failure to conduct a review in the sense discussed in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25].

Breach of s.426A

13. The second allegation made in the application was that the Tribunal’s exercise of the discretion given to it by s.426A miscarried. Section 426A provides:
    • 426A Failure of applicant to appear before Tribunal
    • (1) If the applicant:
      • (a) is invited under section 425 to appear before the Tribunal; and
      • (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
      • the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
    • (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
14. The applicant has put nothing before the Court which suggests that the Tribunal should have considered exercising its jurisdiction differently from the way in which it was exercised. For instance, the applicant has not adduced any evidence to suggest that he requested a delay in the Tribunal’s determination. In fact, in his evidence today the applicant said that he made no contact with the Tribunal at any point between the appointed hearing date and the day on which he received the Tribunal’s decision on his review application. Nor does the evidence contained in the bundle of Relevant Documents suggest any other circumstances which might have suggested to the Tribunal that there was a reason not to proceed to make a decision.
15. The circumstances of this case were that, as far as the Tribunal knew, the applicant simply did not show up at the Tribunal’s hearing. Absent any reason to think that the applicant was prevented in some way from attending, and thus subject to any potential breach of s.425 of the Act, the Tribunal was entitled to proceed to reach a decision on the review.

Breach of s.430

16. The third allegation in the application alleges a failure to comply with pt.7 of the Act and, in particular, that the Tribunal did not comply with s.430(1). Section 430(1) provides:
    • 430 Refugee Review Tribunal to record its decisions etc.
      • (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
        • (a) sets out the decision of the Tribunal on the review; and
        • (b) sets out the reasons for the decision; and
        • (c) sets out the findings on any material questions of fact; and
        • (d) refers to the evidence or any other material on which the findings of fact were based.
17. A failure to comply with s.430 does not itself amount to jurisdictional error, although such a failure may point to jurisdictional error by reason of other flaws or deficiencies in the review’s procedure, reasoning or conclusion. However, in this case there was no failure to comply with s.430(1). As there were no findings on material questions of fact, s.430(1)(c) and (d) did not apply in this case. As to s.430(1)(a) and (b), I am satisfied, from a review of the Tribunal’s decision, that it did set out its decision and the reasons for it.
18. More generally, there is nothing to suggest a failure to comply with pt.7 of the Act in any other respect, subject to the matters to be considered in relation to the allegations which the applicant has raised today concerning a possible breach of s.425. In that regard, he alleges that he was prevented from attending the Tribunal hearing by illness. The applicant has today, for the first time, alleged that he was sick during the evening or night before the Tribunal hearing and only awoke on the hearing day at 10:00am, the Tribunal hearing being listed for 9:30am.
19. The applicant said in his evidence today that he had received the Tribunal’s invitation to the hearing which was dated 24 February 2010 and invited him to a hearing on 31 March 2010. It should be noted at this point that the applicant appeared today without need of an interpreter and also said that he was able to read English. That skill was evidenced when he read aloud, at the request of the Minister’s solicitor, the following paragraph from the letter inviting him to the Tribunal hearing (“s.425A letter”):
    • The Tribunal will only change its 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.
20. The applicant’s evidence was that he thought that after his failure to appear at the hearing, the Tribunal would write to him inquiring why he had not appeared. He said that he had this belief because the Tribunal had said in its letter inviting him to the hearing that a hearing date could be changed “for good reason”. He said that he never contacted the Tribunal to explain his absence and by implication there was no contact between the applicant and the Tribunal at all until the applicant’s receipt of the Tribunal’s decision, which he said occurred on 13 April 2010.
21. I have to say that I do not accept the applicant’s account of his understanding of the Tribunal’s letter. The applicant alleges that he fears death if he returns to India. From his evidence concerning the Tribunal’s statement that a hearing date could be relisted for good reason, I conclude that prior to the Tribunal’s hearing date the applicant had read that part of the Tribunal’s letter of invitation which has been quoted earlier in these reasons. I therefore find that he was aware before the Tribunal’s hearing that if he did not attend that hearing the Tribunal might make a decision without taking any further action to allow or enable him to appear before it.
22. If the applicant was in fear of his life, as he claims, it can be assumed that he would be concerned to make the most of the opportunity presented by the Tribunal’s review. The fact that the applicant made no contact with the Tribunal casts doubt on the genuineness of his claim to fear persecution, although that is not a matter generally relevant to this proceeding. However, the doubt which is cast on the genuineness of the applicant’s claim to have a well-founded fear of persecution affects my view of the genuineness of his claim to have been sick on the night before the hearing. Moreover, his account of his illness was presented in a very matter-of-fact way, lacked detail and, ultimately, was not convincing.
23. I do not accept that on the evening before the Tribunal hearing the applicant was ill, as today he claims he was, and I do not accept that he only awoke at 10:00am on the day of the Tribunal hearing by reason of that illness. I therefore conclude that the applicant was not prevented from attending the Tribunal hearing or that the Tribunal’s invitation to a hearing was anything other than a real and meaningful one.

Tribunal did not assess the applicant’s claim

24. The fourth allegation pleaded in the application raises two issues. The first is that the Tribunal erred because it did not assess the applicant’s claim. The second is that the Tribunal erred because it did not want to assess his claim because it did not want to use the powers given to it by pt.7 of the Act. I will deal first with the allegation of error by reason that the Tribunal did not assess the applicant’s claim.
25. Section 425 of the Act provides that if the Tribunal cannot, on the papers, make a decision which is favourable to an applicant, it must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In many cases, when an applicant fails to attend a Tribunal hearing there is an issue concerning whether and when the applicant is deemed to have received the hearing invitation. That question does not arise in this case as the response to hearing invitation which the applicant returned to the Tribunal demonstrates that the invitation was, in fact, received. That conclusion is supported by the applicant’s evidence today that he received the invitation to the hearing.
26. Moreover, even if there had been some failure to comply strictly with the Act’s various notification time requirements, no injustice or unfairness was occasioned to the applicant on that account. This is because it is clear that the invitation to the hearing was received by the time when the Act and the Migration Regulations 1994 required that it be received. In that regard, when an applicant is invited to a Tribunal hearing, reg.4.35D specifies the length of notice which the applicant is to receive of that forthcoming hearing. It provides:
    • 4.35D Prescribed periods — notice to appear before Tribunal (Act, s 425A)
    • For subsection 425A (3) of the Act, the prescribed period:
      • (a) if the applicant is a detainee — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
      • (b) in any other case — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
27. As noted earlier in these reasons, the s.425A letter invited the applicant to a hearing on 31 March 2010. The applicant was not in detention and so he had to receive notice of the Tribunal hearing no later than 16 March 2010. Significantly, the applicant dated the completed response to hearing invitation “10 March 2010”, indicating thereby that he had received the hearing invitation in good time. Consequently, I find that the requirements of reg.4.35D have been met.
28. Section 426A(1) has been quoted earlier in these reasons. In the circumstances, the Tribunal discharged its obligation to invite the applicant to the hearing and it was empowered by s.426A(1) to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it should he fail to appear. As a result, its decision to do so was not affected by jurisdiction error.
29. As to the second aspect of the fourth allegation appearing in the application, it is, in essence, an allegation that the Tribunal lacked bona fides and failed to perform the duty imposed on it by the Act. I conclude from the Tribunal’s decision that it approached the review in a conscientious manner. The fact that the applicant failed to attend the Tribunal hearing and that the Tribunal then proceeded to make a decision on the claim does not point to any want of good faith. Moreover, such information as the applicant had submitted in support of his visa application was considered by the Tribunal. In para.19 of its decision record, the Tribunal records that it had before it the file of the Minister’s department relating to the applicant and that it had regard to the material referred to in the delegate’s decision as well as to other information.
30. The material which the Tribunal considered to be of significance is that which is set out under the heading “Findings and Reasons”. It performed what analysis it could of the little information which it considered relevant to its decision. The Tribunal considered that information but found that it could not be satisfied, given the paucity of evidence before it, that the applicant met the criteria for the grant of a protection visa. That is to say, the Tribunal did what it could with what it had. I do not conclude that the Tribunal did anything other than approach this review with appropriate diligence and conscientiousness and any allegation of a want of good faith on its part is not made out.

Conclusion

31. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
32. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 2 September 2010