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MIGRATION - RRT decision - decision given at conclusion of hearing - no evidence suggesting bias or bad faith.

SZBSJ v Minister for Immigration [2004] FMCA 672 (30 September 2004)

SZBSJ v Minister for Immigration [2004] FMCA 672 (30 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSJ v MINISTER FOR IMMIGRATION
[2004] FMCA 672



MIGRATION - RRT decision - decision given at conclusion of hearing - no evidence suggesting bias or bad faith.



Migration Act 1958 (Cth), ss.483A

Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)

Judiciary Act 1903, s.39B

Applicant:
SZBSJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 2239 of 2003



Delivered on:


30 September 2004



Delivered at:


Sydney



Hearing date:


30 September of 2003



Judgment of:


Smith FM



REPRESENTATION

Solicitors for the Applicant:


In person



Counsel for the Respondent:


Ms K. C. Morgan



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $3500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 2239 of 2004

SZBSJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application filed on 22 October 2003 invoking the Court's jurisdiction under section 483A of the Migration Act, which gives this court the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. In the present case that jurisdiction is section 39B of the Judiciary Act 1903 (Cth).

2. The powers of the court are limited to providing a remedy to an aggrieved person only where a legal defect can be identified in the administrative action under challenge. I am bound by statements of the High Court which emphasise that the Court has no power to send a matter back to a Tribunal for rehearing unless it can find an important error, described as a "jurisdictional error", by the Tribunal.

3. The background to the present application is sufficiently described in the respondent's outline of submissions, which were filed prior to the hearing, and I incorporate the following paragraphs of those submissions:

2. The applicant, a citizen of India, arrived in Australia on 25 December 2002. On 13 January 2003, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) received an application for a protection visa from the applicant. On 12 February 2003 a delegate of the Minister refused the protection visa application finding that applicant's claims were "broad vague and lacking in detail", and concluding that fear of persecution was not well founded.

3. On 10 March 2003 the Tribunal received an application for review from the applicant. On 26 August 2003 the Tribunal invited the applicant to attend a hearing on 14 October 2003; on 4 September 2003 the Tribunal received a response from the applicant, indicating he would be attending the hearing.

4. On 14 October 2003, the applicant attended a hearing before the Tribunal and gave oral evidence. On the same day the Tribunal handed down its decision affirming the delegate's decision.

Applicant's claims

5. The applicant claims to fear persecution in India because, as the secretary of Merchants Youth Union in Kerala, he had upheld a claim by a Christian family. The members of the Merchants Youth Union were Muslim and Hindu and singled out the applicant for upholding the Christian family's claim. The applicant was tortured mentally and physically and was forced to leave the country.

6. The applicant claims that he fears his life is in danger if he returns to the country because his view of treating all communities equally was "so feared that the Hindu and Muslim communities had feared my annihilation" and have made relocation impossible.

7. The applicant claims the authorities will not do anything to protect him on his return because India is currently ruled by the Hindu party "who will do everything to uphold the benefits of that community and appease them".

The Tribunal's decision

8. On the day of the hearing, 14 October 2003 the Tribunal made its decision, affirming the delegate's decision not to grant the applicant a protection visa.

9. After outlining the relevant provisions of the Migration Act and the Refugees Convention and Protocol, the Tribunal considered the applicant's claims as outlined in his application and his oral evidence at the hearing. The applicant's oral evidence was summarised by the Tribunal, relevantly:

a) He could not return to India because of financial problems;

b) He assisted personally a Christian family whose child was ill after the Merchant's Youth Union refused assistance on the grounds they were a Christian family;

c) An apology was demanded by the Merchant's Youth Union and he was discarded as secretary in February 2002 and attacked on 25 February 2002 and his shop was destroyed;

d) He fled to Bombay and then to Dehli and in Dehli he saw members of the youth committee; and

e) He reported the matter to the police but couldn't describe his attackers and the police "did nothing because it was a political issue".

10. The Tribunal concluded that "the applicant's claims are implausible"; that he "created his claims in order to enhance his claims to refugee status."

11. Certain findings were made by the Tribunal, relevantly, the Tribunal refused to accept:

a) That the Merchant's Union of Kerala target their members because they arrange charitable assistance for Christians;

b) That Muslim and Hindu members of the Merchant's Union unite against Christians or persecute Muslims who assist Christians;

c) That Indian authorities in Kerala would condone persons who target Muslims or target Muslims helping Christians ; and

d) That there was a pattern of persecution of Muslims in India or that the state is indifferent or unwilling to act.

12. The Tribunal found that the applicant created his claims to refugee status, and thus did not accept:

i) that he was harmed, harassed, that his shop was burned or that he had to flee Kerala; nor

ii) that he complained to the police about being harmed

13. The Tribunal concluded "having considered the evidence as a whole" it was not satisfied that the applicant was a person to whom Australia had protection obligations and affirmed the decision of the delegate .

4. The application filed in this court by the applicant, unaided by any legal assistance, provided one ground on which the court's jurisdiction was evoked, and it was in the following terms:

RRT had made decision on the same day hearing was done. No details are given for the refusal, so I feel it is predetermined. When I get the details of reasons for refusal I will give a submission in writing to the Federal Court.

5. The applicant was present in court on the return date of his application on 3 March 2004, and he was directed to file written submissions prior to the hearing date. However, he has not sought to amend his application to argue additional grounds, and he has not provided any written submission to elaborate any argument in support of the order he seeks, which is an order that the Refugee Review Tribunal conduct a reconsideration.

6. Before me he has repeated his complaint that he feels that the Tribunal made a decision too quickly. He tells me that he went to the hearing, he answered the Tribunal's questions, he was told to wait 5 minutes, and then he was given a copy of the written decision, which appears in the green book at page 56 which, indeed, is a written decision bearing the same date as the hearing. The green book contains a further letter to the applicant dated 24 October 2003, which enclosed the Tribunal's reasons, which are summarised in the respondent's submissions I have extracted above.

7. I accept the analysis of the complaint made by the applicant, which is provided in the respondent's outline of submissions as follows:

14. The application, filed prior to the provision of the Tribunal's reasons, includes only the sole ground that the Tribunal predetermined the matter.

15. The allegation that the Tribunal predetermined the matter is an allegation that the Tribunal exhibited either:

a) apprehended or actual bias; or

b) some other mala fides.

16. Both are serious allegations that should not be made lightly. The circumstances in which a Court will find an administrative decision maker has not acted in good faith are rare and extreme. (SBBS v Minister for Immigration & Multicultural Affairs [2002] FCAFC 361)

17. The absence of bona fides is seldom made out by reference solely to the reasons for a decision (VFAB v Minister for Immigration & Multicultural Affairs (2003) 77 ALD 23 at [21]. See also SBBS (supra)). As to both 15(a) or (b) above, particulars and possibly evidence would need to be provided for the Court to make the finding that the Tribunal had predetermined the matter. That the Tribunal handed down its decision on the same day as the hearing is insufficient to establish either ground.

18. The only evidence before this Court is the Tribunal's reasons for its decision. There is no transcript or other evidence from the applicant. When the allegation is that the matter has been predetermined, "the transcript of the proceedings before the Tribunal will, of course, be important especially to determine the actual statements made by the Tribunal, the nature of the exchanges between the Tribunal and the parties or their legal representatives, and the context in which the statements were made."(Sarbit Singh v Minister for Immigration and Ethnic Affairs [1996 FCA 902 at 6-7, as discussed by Kenny J in VFAB (supra) at [22])

19. There is nothing on the face of the decision to indicate that the Tribunal had a mind not "open to persuasion" or "incapable of alteration" (Minister for Immigration and Multicultural Affairs v Jai (20010 205 CLR 507 at 531-2), or that would cause a "fair minded lay observer [to] reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided." (Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425).

20. No jurisdictional error has been identified by the applicant.

8. I agree that the applicant has not been able to point to any evidence that the Tribunal had not kept its mind open in the course of the hearing it conducted. In view of the extensive reasons that had been provided by the delegate, and the nature of the applicant's claims shown in the papers that he had filed in support of his original refugee application and his appeal, I think it was well open to a Tribunal familiar with the background circumstances of India to have felt able to arrive at a decision quickly at the conclusion of its hearing, and I am not prepared to find that the Tribunal had not kept an open mind.

9. I therefore dismiss the application before me.

RECORDED : NOT TRANSCRIBED

10. I shall order that the applicant pay the respondent's costs, which I set in the sum of $3500.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 6 October 2004
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