FEDERAL COURT OF AUSTRALIA

Mulla v Minister for Immigration & Multicultural Affairs [2001] FCA 934

MIGRATION – Application for a protection visa – review of decision of the Refugee Review Tribunal –Tribunal sent invitation to oral hearing to applicant’s address for service – adviser acting for the applicant accepted invitation  - applicant did not attend the hearing – Tribunal made a decision without hearing oral evidence from the applicant – whether this constituted judicially reviewable error.

Migration Act 1958 (Cth) ss 425, 425A, 441A

Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 referred to

Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 referred to

Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 referred to

MOHEMMAD RAFEEQ MULLA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 312 of 2001

MOORE J

19 JULY 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application by Mohemmad Rafeeq Mulla (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 12 February 2001, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

Background

2                     The applicant is a citizen of India who arrived in Australia on 26 March 1998.  On 23 March 1999 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 31 March 1999 a delegate of the Minister refused the grant of a protection visa and on 21 April 1999 the applicant applied to the Tribunal for review of that decision.

The Tribunal’s reasons

3                     The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 and Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.  In a section in its decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant in his application for a protection visa, written submissions in support of the application and in his application for review.  The Tribunal also had before it three documents submitted by the applicant’s adviser.

4                     The sole issue raised in the application for judicial review concerns the decision by the Tribunal to affirm the decision of the delegate without hearing oral evidence from the applicant.  Accordingly it is probably unnecessary to set out the claims of the applicant but, for completeness, I will do so.

5                     The following is a summary of the Tribunal’s account of the applicant's claims.  The applicant is a member of a family which was, for many years, of the Hindu faith.  However, while a school student, he became aware of and was disturbed by the discrimination directed towards Muslims by Hindus.  He was particularly conscious of the discrimination as he had a friend who was a Muslim.  Between 1993 and 1996 the applicant lived and worked in Saudi Arabia, during which time his understanding of and affinity for the Muslim culture increased.  On his return to India and his family he shared with them his knowledge of Islam, “after much discussion and reading the holy books of Islam”, the whole family made the decision to convert to Islam.  Following the conversion of the applicant and his family, Hindu members of their community commenced attacks aimed at punishing them for their decision to become Muslims, and to send a message to other Hindus of the repercussions which would follow if they, too, chose this course.

6                     On one particular occasion, in the absence of the applicant and his father from the family home, Hindus assaulted his wife, mother, younger brother and sisters, rendering them unconscious and then robbing and burning their house.  Fellow Muslims known to the applicant were able to assist and shelter the family following the attack, and it is the applicant’s belief that the purpose of the attack was to “kill the adult male members of the family to create an example for other Hindus.”  The applicant also claimed that the adult male members of the family had been falsely accused of “anti-state activities”.  As a result they were sought by the police and other Hindus in the community, who in their attempts to ascertain their whereabouts were “intimidating and assaulting” other Muslims.  In view of the circumstances in which he found himself, the applicant held fears for his safety and resolved to leave the country, which he did in March 1998 after applying for, and being granted, a visitor’s visa to Australia.

7                     The Tribunal considered the applicant’s claims in a section in its reasons entitled “Findings and Reasons”.  It commenced by finding the applicant’s claims to be “general and lacking in sufficient detail to enable the Tribunal to establish the relevant facts”. 

8                     With regard to the problems experienced by the applicant and his family within their community since embracing the Islamic faith, the Tribunal stated:

“(H)e gives no indication as to why he has not gained support from the 120 million Muslims in India.”

9                     The Tribunal did not accept the applicant’s claim of harassment by police and Hindu community members, finding that the applicant did “not give sufficient detail” for it to be satisfied.  It went on:

“It may be his family is now living happily amongst their newly acquired community.  Although he claims his parents, wife, son, brother and sisters remain in certain danger in India he did not attend the hearing to provide the Tribunal with up to date information about his family.  He has not provided sufficient information for the Tribunal to be satisfied that his conversion will cause serious harm in India.”

10                  The Tribunal concluded by saying:

“The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity to explore aspects of his claims with him.  A number of relevant questions are therefore left unanswered.  I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

The application for judicial review

11                  In the application for judicial review, the applicant was unrepresented and spoke through an interpreter.  However the issue he raised was clearly articulated.  It was simply that there had been no hearing at which he gave oral evidence and there should have been.  Before addressing that question it is necessary to set out briefly some of the facts leading to the decision of the Tribunal. 

12                  The applicant stated in the application form lodged with the Tribunal that he had an adviser acting for him.  The adviser was identified in the form as was an address for service of documents on him.  The address for service was the adviser’s address.  In a notice dated 11 December 2000 from the Tribunal sent to the applicant at the adviser’s address, the applicant was informed first that there would be a hearing of the Tribunal at which he could give oral evidence and secondly that the hearing would take place at 9.00am on Thursday 8 February 2001.  The notice invited him to attend the hearing and to respond to the invitation by forwarding to the Tribunal before 25 December 2000 a completed form entitled "Response to Hearing Invitation".  The applicant's adviser completed the form on, I infer from its date, 9 January 2001 and returned it to the Tribunal.  The date stamp indicating when it was received by the Tribunal is not entirely clear but it was sometime in January 2001.  The adviser indicated in the completed form that the applicant wanted to come to a hearing. 

13                  In a letter dated 6 February 2001 to the Tribunal, the adviser asked that the hearing be rescheduled.  The adviser stated that the applicant was in Queensland and the adviser had been unable to contact the applicant.  On one view of this letter, it might be inferred that the response dated 9 January 2001 to the invitation was completed without the express instructions of the applicant and that at the time it was completed and afterwards, the applicant was unaware that there was to be a hearing on 8 February 2001.  However, for reasons which I explain shortly, this would not have any legal consequences even if it was the preferable inference.

14                  The Tribunal was obliged by s 425 in the circumstances of this matter, to invite the applicant to attend a hearing to give evidence.  It was obliged by s 425A to do so in a manner prescribed by s 441A.  Section 441A(2) provides that an invitation under s 425A (amongst other documents:  see subs (3)) can be taken to be given to the applicant by giving it to a person authorised by the applicant to receive documents.  While it is not free from doubt, I think the better view is that this provision was satisfied in the present case, by the Tribunal sending the invitation to the person identified by the applicant as authorised to act on his behalf, namely his adviser, given that the adviser’s address was also nominated as the address for service.  Plainly enough, in fact, the adviser received the invitation because the adviser responded.

15                  If, as occurred in this case, an applicant was invited to appear before the Tribunal, but does not appear at the appointed time and place, the Tribunal has a discretionary power to make a decision without taking any further action to allow or enable the applicant to appear before it: see s 426A(1), and as to the obligation to extend the invitation and the powers exercisable if the applicant does not appear see generally:  Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472; Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842; Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476.  In the present case the Tribunal exercised that power and made a decision.  Save for one matter, the exercise of the discretionary power appears to have been unexceptionable and certainly does not reveal any judicially reviewable error.

16                  The qualification concerns a view expressed by the Tribunal that the it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and “that he has effectively declined that opportunity”.  This latter observation may reveal reviewable legal error if two matters were established.  The first would be that, as a matter of fact, the applicant never knew of the hearing date and the invitation to attend.  That would be so if it could be clearly inferred from the letter of 6 February 2001 and other documents that the response to the invitation was completed by the adviser without express instructions from the applicant and the applicant had never been made aware of the hearing date because the adviser had been unable to contact him.  The second is that the reference by the Tribunal to the applicant “effectively declin(ing) that opportunity” was to be treated as a finding of fact that the applicant had been made aware of the opportunity and had elected not to attend.  These two matters together might, at least arguably, establish that the Tribunal based its decision to affirm the delegate’s decision on the existence of a particular fact, and that fact did not exist.  However I take the reference by the Tribunal to the applicant “effectively” declining the opportunity, in the context in the Tribunal’s reasons in which it is made, as a reference to the consequences of the statutory scheme which permits the invitation to be sent to an adviser who has responded on the applicant’s behalf.  That is, the applicant was advised of the opportunity through his adviser and can be taken to have declined the opportunity because he did not appear.

17                  I dismiss the application and order the applicant pay the respondent’s costs.

Associate:

Dated:              19 July 2001