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[2011] FCA 139
Federal Court of Australia
2011-02-23
Mr J, Lander J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate made on 23 August 2010 dismissing the appellant's application for judicial review and ordering the appellant to pay the first respondents' costs of the proceeding fixed in the amount of $5,685. 2 On 22 May 2009 the appellant who is an Indian citizen arrived in Australia on a subclass 572 student visa. The appellant briefly returned to India in August/September 2009 to visit his sick father. On 19 September 2009 he returned to Australia and on 8 October 2009 the appellant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 14 December 2009 a delegate of the first respondent refused the appellant's application for a protection visa. On 8 February 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the first respondent's decision. On 19 March 2010 the Tribunal affirmed the decision under review. 3 On 6 April 2010 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The appellant sought orders that the decision of the Tribunal be quashed and that he be allowed to remain in Australia. On 8 June 2010 an amended application was filed by the appellant. 4 As mentioned above, the Federal Magistrate dismissed the appellant's application. On 8 September 2010 the appellant filed a notice of appeal in this Court.
Proceedings in the Refugee Review Tribunal 5 The appellant is an Indian citizen, an ethnic Punjabi and a Hindu. He also claimed to be a member of the Harijian caste. The appellant asserted that this was the lowest caste of Hindus and, as a result, he had been the subject of discrimination and persecution. 6 The appellant obtained a Bachelor of Commerce degree from the Guru Nanak Dev (GND) University. 7 The appellant alleges that because of his caste and whilst a student, he had not been allowed to approach his teachers or shake hands with fellow students. Further, he had been abused and "badly bashed" by fellow students. He alleged his father had lost possession of his house because it had been deemed unsuitable for a person of his caste. When he sought help, he claimed he received death threats from "Hindu organizations". 8 The appellant asserted that the mistreatment of lower caste members in India has been well documented by human rights bodies. He referred to reports of members of his caste being burned alive and their houses being set on fire. He also alleged that members of his caste are denied employment and are unable to prosper. 9 The appellant feared persecution from upper caste Hindus on grounds of his race and caste if he returns to India. 10 The Tribunal sent two letters to the appellant's address before it made its decision. On 9 February 2010, it sent by registered post an acknowledgement of the application, inviting the appellant to consider providing his written material or arguments to the Tribunal as soon as possible. This letter was not returned to the Tribunal. 11 On 22 February 2010, the Tribunal wrote to the appellant requesting he attend a hearing on 18 March 2010. The letter indicated that the Tribunal had considered the appellant's visa application material, but was unable to make a favourable decision on this information. The appellant was invited to appear to give his evidence and present arguments, and was warned that if he failed to attend, the Tribunal might make a decision without taking any further action to allow or enable him to appear before it. The letter was sent in order for the Tribunal to comply with s 425 of the Migration Act 1958 (Cth) (the Act). The letter was not returned to the Tribunal. 12 Because of his non-appearance at the hearing the Tribunal made its decision on the evidence available to it, without taking any further action to enable the appellant to appear before it: s 426A. 13 The Tribunal did not accept that the appellant was a member of a lower caste. The Tribunal did not accept that the appellant or his family had suffered any discrimination or other past harm or ever required protection from harm. 14 The Tribunal found that the evidence before it, without further detail or clarification, was insufficient to substantiate the claims made by the appellant. The Tribunal found there was a lack of evidence in relation to the appellant's personal, family or educational background, his membership of a lower caste, and those matters manifest itself in his and his family's daily lives. The Tribunal found that it did not have before it sufficient information relating to the appellant's allegations of past discrimination or mistreatment towards him and his family. It also found that there was insufficient evidence in relation to the appellant's claim that he would face discrimination amounting to persecution for reason of his caste membership. The Tribunal did not have before it details of the country information setting out the discriminatory treatment of lower castes in India as alleged by the appellant. 15 For those reasons, the Tribunal held that it was not satisfied that the appellant had a well-founded fear of persecution for one or more of the Convention reasons if he returns to India. The decision of the delegate of the first respondent was therefore affirmed.
Proceedings in the Federal Magistrates Court 16 As I have mentioned, the appellant's application sought orders that the decision of the Tribunal be quashed and that the appellant be allowed to remain in Australia. 17 The grounds in the application alleged first, that the Tribunal had erred by taking into account "old country information"; and secondly, that the appellant had been denied natural justice by the appellant. 18 Again as I have mentioned, on 8 June 2010 the appellant filed an amended application. Ground 1 alleged that the Tribunal had failed to take into account evidence of persecution put forward by the appellant. Ground 2 claimed that the appellant was denied natural justice by the Tribunal. Ground 3 claimed that the Tribunal erred in regarding the appellant's failure to attend an interview with the first respondent as a relevant consideration. 19 The Federal Magistrate considered the grounds raised by the appellant in both the original application and the amended application but found that none of the grounds made out jurisdictional error. 20 The Federal Magistrate found that the Tribunal's decision did not turn upon "old country information" but on its inability to be satisfied as to the foundations of the appellant's claims to be a refugee due to his absence from the hearing.
Ground 1 21 The Federal Magistrate rejected the appellant's argument that the Tribunal had failed to consider his evidence of persecution. His Honour found that the Tribunal considered the evidence given by the appellant in his visa statement. As the appellant did not submit any further material and did not attend the appointed hearing, there was no other evidence upon which the Tribunal could make its decision. Section 426A(1) of the Act expressly authorised the Tribunal to make a decision on the evidence before the Tribunal where the appellant failed to attend a hearing.
Ground 2 22 The Federal Magistrate rejected the appellant's claim that he had been denied natural justice and that the Tribunal had not decided the matter according to law. As mentioned above, the decision made by the Tribunal was expressly authorised by s 426A(1) of the Act. Further, his Honour considered that the hearing had been appointed in compliance with all the formalities under the Act and the Migration Regulations 1994 (Cth). 23 The Federal Magistrate considered the appellant's claim that he had not received the registered post letter appointing the hearing, notwithstanding that the appellant had admitted that it appears to have been sent to the correct address. The Federal Magistrate held that whatever the reason for his absence, the authorities "are clear that the Tribunal's power to proceed under s 426A(1) of the Act is not lost, and its decision is not vitiated, by reason of a notification not being actually received (see VNAA & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at 413-414)". The Federal Magistrate therefore determined that the Tribunal was entitled to decide the matter and that its decision was made according to law.
Ground 3 24 The Federal Magistrate did not accept that the Tribunal had regard to the appellant's failure to attend an interview with the first respondent as a relevant consideration. His Honour held that although the Tribunal did refer to the appellant's failure to attend an interview with the delegate, the decision was not based on that finding. 25 The Federal Magistrate found that the appellant's grounds had not made out jurisdictional error and dismissed the application.
The Appeal to this Court 26 The appellant's notice of appeal sets out three grounds of appeal. 27 The first ground alleges jurisdictional error on the part of the Tribunal because it failed "to determine the actual and factual legal position of the applicants (sic) claim". 28 In the second and third grounds of appeal, the appellant submitted that the Tribunal failed to consider the country information and evidence he put forward concerning the discrimination he has allegedly suffered as a member of his caste. 29 The appellant seeks an order that the decision of the Tribunal be "declared null and void" and that he be allowed to remain in Australia. The appellant also seeks an order for costs against the respondent. 30 The grounds include information which the appellant had not put before the Tribunal, although the information may well have been known to the Tribunal by reason of the country information which it possessed. 31 The appellant was unrepresented at the appeal. He recounted the discrimination which he said he suffered as a result of his membership of the lower caste. He did not identify any failure by the Tribunal in respect to jurisdictional error. Nor did he point to any error on the part of the Federal Magistrate. 32 Whilst the matters which the appellant put to me are no doubt important to the appellant, they are not relevant on the appeal. This Court cannot concern itself with the merits of the appellant's application to the Tribunal. 33 The appellant has not in his grounds of appeal or in his written or oral submissions identified any jurisdictional error on the part of the Tribunal. I have read the appeal book in order to attempt to detect any such error on the part of the Tribunal. I cannot detect any error. 34 In my opinion, the Federal Magistrate was right to conclude that the Tribunal was entitled to decide that there was insufficient evidence before it to support the appellant's claims that he was a member of the lower caste; that he was thereby discriminated against or persecuted; and he was therefore, as a result, fearful that if he were to return to India that he would be persecuted. 35 The Tribunal proceeded according to law and, in accordance with the Act, because it could not make a decision favourable to the appellant on the information before it, invited the appellant to appear: s 425 of the Act. The appellant did not appear, notwithstanding that the notice had been sent by registered post to the appellant's address. In the absence of the appellant, the Tribunal was entitled to proceed to make a decision on the information and evidence before it: s 426A of the Act. 36 In my opinion, the Federal Magistrate was right to dismiss the application for judicial review and no error has been shown on his part. The appellant has not demonstrated that the Tribunal committed jurisdictional error. 37 The appeal must be dismissed. Costs must follow the event. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
SZOHX
Minister for Immigration and Citizenship
[2010] FMCA 654
(2004) 136 FCR 407