SZOMF v Minister for Immigration and Citizenship

Federal Court of Australia|2011-02-08|Before: McKerracher J

INTRODUCTION 1 The appellant, a citizen of India, arrived in Australia on 11 February 2008 on a student visa. On 14 December 2009, he lodged an application for a protection visa (Class XA) with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application on 17 March 2010. On 16 April 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. 2 The appellant claimed to be a religious Sikh, and to have been involved in the All India Sikh Student Federation. He claimed that he was a 'central committee member' of a political party that supports a free and independent state of Khalistan, to be obtained through peaceful means. As a consequence, the appellant claimed that he has been followed by secret agencies, interrogated by security agencies, arrested, badly treated by the police, detained, tortured and beaten, then released but threatened should he resume activities with the organisation. The Tribunal, being unable to make a decision favourable to the appellant on the basis of the material before it, invited the appellant to attend a hearing to give evidence and present arguments. The appellant expressly declined that invitation. 3 The Tribunal found that the appellant's account of his experience in India was 'vague, lacking in detail on essential points and entirely unsubstantiated'. Having found numerous 'shortcomings' in the appellant's written claims, the Tribunal indicated that it would have used the hearing as an opportunity to question the appellant about his claims. In the circumstances where the appellant did not attend any hearing, the Tribunal found that there was 'insufficient information on which [it] could be satisfied that the [appellant] would face a real chance of serious harm if he returned to India'. 4 The learned Federal Magistrate considered the grounds advanced by the appellant in his application as well as the material contained in the amended application filed on his behalf on 11 August 2010. The learned Federal Magistrate found that the appellant's grounds of application were not made out and observed that 'when applicants refuse the invitation to a hearing the result is inevitably that their claims are dismissed; NAVX v Minister for Immigration [2004] FCAFC 287, and that is what occurred here'. In that decision, the Full Court (French, Emmett and Dowsett JJ) dismissed an appeal from Allsop J, saying (at [5]): In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application. 5 This is an appeal from the judgment of a Federal Magistrate delivered on 8 September 2010 (SZOMF v Minister for Immigration & Anor [2010] FMCA 776). His Honour dismissed the application for judicial review.

APPELLANT'S CLAIMS 6 The appellant claims to have a well-founded fear of persecution because of his political opinion and religion. He claims that he was a Sikh from Amritsar (in the Punjab, India). He had been an active member of the All India Sikh Student Federation and longtime supporter of the Khalistan movement and the Shiromani Akali (A). 7 He claimed that members of this party were sought out by the Indian Army, were accused of being associated with the Pakistan intelligence agencies and were followed by security agencies. The appellant claimed that he was detained, tortured, made to sleep on ice blocks, deprived of food and water, subjected to sleep deprivation and interrogation and badly treated by the police. He claimed that he had been deprived of his livelihood and that he became a pauper due to the illegal activities of authorities in India. The appellant also claimed that he had been arrested but was released by Court order. 8 In fear for his life, the appellant claimed that he had no alternative but to leave India.

THE TRIBUNAL'S DECISION 9 The Tribunal expressed the view that the written material did not provide a sufficient basis to be satisfied that the appellant was ever an activist in support of the Khalistan movement, or that he was ever subjected to harm for this or any other reason. The Tribunal advised the appellant that it would be unable to make a favourable decision on the written information provided and invited the appellant to attend a hearing. The appellant refused to attend and consented to the Tribunal proceeding to make a decision. 10 The Tribunal accepted that the appellant was a citizen of India. However, the Tribunal found that on the information provided, it could not be satisfied that the appellant was ever an activist in support of the Khalistan movement or that he was ever subjected to harm for this or any other reason. 11 The Tribunal pointed out that: …he does not explain where or in which branch of these organizations he allegedly rose to the position of a member of the central committee, or when this may have occurred. … He does not explain when or how frequently he received the alleged threats to his life or why, in the face of these continuing threats, he chose to remain at the same address and did not take action to avoid danger. He does not explain how, if he had lost his business as a result of his alleged first arrest, so that he was deprived of his livelihood and became a pauper, he was nevertheless able to find the very substantial amount of money required to study in Australia. He does not mention any impact which these events may have had on his family. Finally, he does not explain why he would not have been able to seek safety by relocating to another part of India instead of adopting the much more radical and expensive step of leaving the country entirely and travelling to a distant land such as Australia. I would have used the opportunity of the hearing to ask the Applicant about his claims to fear harm in India and allow him the opportunity to explain how the feared harm engaged the provisions of the Convention… 12 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any Convention-related reason and affirmed the decision of the.

FEDERAL MAGISTRATE'S DECISION 13 Before the Federal Magistrate the appellant raised the following grounds (without alteration): 1. That the applicants claim was not addressed in the legal manner, nor the applicant had enough opportunity to be given the documents to prove his claim, the only issue was addressed by the RRT, is that the applicant has not satisfied the criteria laid down, the applicant did by way of his claim satisfied the criteria as laid down. 2. That the RRT failed to consider the evidence as provided by the human rights commission and other bodies like US country information reports, there is a legal and jurisdictional error in the decision. The laws of natural justice were totally ignored in the present case. The respondent admitted in the decision that there is a great discrimination against the Sikh community all over India. 3. The legal issues like the taking in to account the above information, is without jurisdiction and has resulted in the manners which are against the principles of natural justice, hence this is a legal error. 14 In an amended application in the Federal Magistrates Court filed on 11 August 2010, the appellant also appeared to claim that the Tribunal was biased in making its decision. 15 The learned Federal Magistrate noted that the appellant had been invited to appear before the Tribunal as it would be unable to make a favourable decision based only on the information provided. It was further noted that the appellant had been in Australia for two years which was a considerable amount of time to obtain any further information he thought was required. His Honour stated that it was the appellant's responsibility to satisfy the Tribunal of his claims, and that the Tribunal was not required to start from the position that every applicant was a refugee. 16 In relation to ground 2, his Honour was unable to find evidence in the Tribunal's decision which indicated that it agreed "that there was great discrimination against the Sikh community all over India". Further, his Honour noted that the Tribunal was not required to consider independent country information and did not have an opportunity to investigate the claims made by the applicant in view of his non-attendance. His Honour stated that s 422B of the Migration Act 1958 (Cth) (the Act) was an exhaustive statement of the natural justice hearing rule and found that the appellant was not able to establish which part of the section was not complied with by the Tribunal. 17 His Honour had difficulty understanding ground 3 and considered that it repeated part of ground 2. Therefore, the claim was rejected for the reasons in ground 2 in respect of s 422B of the Act. 18 In respect of the allegations of bias, his Honour found that in the absence of any reference in the Court Book to other applicants who made an identical claim, it was not possible that the mind of the Tribunal was so affected that it was fixed upon a decision against the appellant and incapable of change. 19 Finally, as noted in [4] above, his Honour stated that the appellant's refusal of the invitation to the hearing before a Tribunal would inevitably result in the claim being dismissed: NAVX. The court could not indulge in merits review and that the appellant was confined to comments relating to the manner in which the Tribunal reached its decision. His Honour dismissed the application with costs.

GROUNDS OF APPEAL 20 The appellant appears to reiterate the claims made in the amended application in the Federal Magistrates Court. The appeal and grounds of appeal as best understood (with substantial alleged factual information within the body of the grounds) raise, in essence, the following: 1. There were a number of reports from independent sources that the Sikh movement for their homeland is not over and that there are similar claims made by others. As a result, the appellant's case was prejudiced. 2. The appellant's case was not dealt with in accordance with the guidelines given by the handbook of UNHCR, and there were many jurisdictional errors coupled with legal errors. 21 Although the grounds are not directed to the Federal Magistrates Court decision, for the purposes of this appeal, the grounds will be considered as asserting a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 22 In argument before me the appellant reiterated the factual grounds which had been previously rejected, stressing that his life was at risk if he returned to India. No new complaint as to the process was raised.

ANALYSIS 23 To the extent that ground 1 is alleging that the Tribunal did not refer to independent country information in making its decision, that ground is not made out. It is well established that the choice and weight accorded to independent country information is entirely a matter for the Tribunal (NABD v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 (at [8]) per Gleeson CJ). It is a matter for the Tribunal as to what evidence it obtains: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118. 24 To the extent that ground 1 is an allegation that the Tribunal was biased, that ground is not made out. Bias is a serious allegation that must be strictly proved (see also (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 (at [43] to [44]); Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). In this case, the Federal Magistrate was unable to find that the Tribunal decision was infected with bias. That decision is correct. No bias is discernible for the following reasons. 25 A finding of actual bias requires the Court to reach the conclusion that the Tribunal in this matter was so committed to a conclusion already formed that its mind was incapable of alteration, whatever evidence or arguments might have been presented to it: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. In this regard (at [29]-[31]), the Tribunal outlined its reasons for rejecting the appellant's claims. In particular (at [30]) the Tribunal outlined the aspects of the appellant's claim that it wished to explore with him, had he decided to attend the hearing. However, it is noted that the appellant indicated in writing that he did not wish to attend the hearing. It is further noted that the 'Response to hearing invitation' form clearly stated: Please note that if any review applicant selects 'No' in response to the following question, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it. 26 There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 (at [27]-[32])). Nor does a fair reading of the Tribunal's decision disclose a lack of an honest or a genuine attempt by the Tribunal to make a decision, including in the conduct of its review (NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 207). 27 As to ground 2, in the absence of particulars, it is not clear what aspect of the Tribunal decision was not dealt with in accordance with the UNHCR guidelines. To the extent that the appellant is claiming he was denied procedural fairness, this ground is not made out. The appellant was invited in accordance with s 425 of the Act to appear before the Tribunal. However, he indicated in writing that he did not wish to appear before the Tribunal, and was aware that not attending the hearing might cause the Tribunal to proceed to making a decision without taking any further action to allow or enable him to appear before it. It is noted that the Tribunal waited until after the date of the Tribunal hearing before handing down its decision. Section 426A of the Act provides: (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. 28 The appellant was not denied procedural fairness before the Tribunal. 29 The appellant appears to be seeking an impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 291).

CONCLUSION 30 The learned Federal Magistrate was correct in concluding that no jurisdictional error can be found in the Tribunal's decision. The grounds of appeal are not made out. 31 The appeal is dismissed. The appellant is to pay the first respondent's costs of the appeal, to be taxed if not agreed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

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