SZBYR v Minister for Immigration
[2005] FMCA 1137
•5 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1137 |
| MIGRATION – Review of decision of RRT – where the Tribunal made findings on inconsistency between statutory declarations and oral evidence given by the applicants – where the essential reason for the decision was that the applicants’ claims were claims which had no Convention nexus – whether an adjournment should be granted – whether a default in the Minister complying with the orders of the court by one day affected the applicants’ ability to have previously obtained legal opinion. |
| Migration Act 1958, s.424A(1) Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(a) |
| SZDQL v Minister for Immigration [2005] FCA 769 VAF v Minister for Immigration (2004) 206 ALR 47 SAAP v Minister for Immigration [2005] HCA 24 SZDFO v Minister for Immigration [2004] FCA 1192 NAZY v Minister for Immigration [2005] FCA 744 |
First Applicant: Second Applicant: | SZBYR SZBRS |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2527 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 August 2005 |
| Date of Last Submission: | 5 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2005 |
REPRESENTATION
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed
Applicants to pay the respondent's costs assessed in the sum of $4000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2527 of 2003
| SZBYR |
First Applicant
SZBRF
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicants in this matter are a husband and wife. They are citizens of India. They arrived in Australia on 2 October 2002. On 28 October 2002 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 21 November 2002 a delegate of the Minister refused to grant protection visas and on 2 December 2002 the applicants applied for review of that decision. The applicants were invited to a hearing before the Refugee Review Tribunal which they attended. On 14 October 2003 the Tribunal determined to affirm the decision not to grant protection visas. It handed down that decision on 6 November 2003.
The applicants’ claims to have a well-founded fear of persecution for the convention reasons of religion and membership of a particular social group are intertwined. In short their history is this: the applicant husband is a Muslim from the city of Hydrabad. He is an Ismaili Muslim. He fell in love with another Muslim woman who was not from the section of the religion. This woman's parents were well connected within Hyderabad, they did not approve of the relationship between the husband and their daughter. They threatened the husband. He was beaten up and his property was destroyed. False charges were laid against him and he was imprisoned. He was released from prison on the promise not to associate further with the daughter. He did not keep that promise. He reinstituted relations with her and they ran away to Bombay where they were married. After a while they were discovered in Bombay by her family. Once again violence and false charges ensued. The husband was placed in imprisonment, the wife was taken back to her family. The husband saw out his term of imprisonment and returned to Hyderabad, when he did so he was approached by his wife's family who asked him to divorce her. He eventually agreed. After the divorce the husband made an arranged marriage with the second applicant who was from Bombay. He went to live with her in Bombay, they had no problems from the family of his first wife until, regrettably, she had committed suicide. The family then approached the husband and wife, they accused them both of having some involvement in her suicide. Both of them were imprisoned for short periods and then released. They moved back to Hyderabad and worked in a village outside the town but they became frightened by the existence of the former wife's family and because of that fear decided to leave India and seek asylum in Australia.
All these matters were contained in a statutory declaration sworn by the husband and found to commence at CB [30]. This declaration was used for the purposes of the application for a protection visa. When the applicants were refused such a visa by the Department they made an application to the Tribunal in the form found at CB [67]. This states that they had lodged an application for a protection visa and asked the Tribunal to consider their application for refugee status. The Tribunal considered the matters raised by the applicants and discussed those matters with them at the hearing. The Tribunal made some findings of inconsistency between the statutory declaration and evidence given by the applicant and states at CB [136]:
“First the applicant husband did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife's oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.”
The Tribunal explains its concerns between CB136 and 137 before at CB [138] stating:
For the reasons set out above I find that at the time the applicant and his wife left India there was no outstanding charge against them and the police maintained no adverse interest in them.
The Tribunal relied not only on the inconsistencies in evidence but also on some independent country information which had been discussed with the applicants concerning the ability of persons with charges over their head to leave India. All these matters form part of the Tribunal's findings and reasons but the Tribunal also considered the nature of the problems which the applicants claimed to face and stated at CB [139]:
“The evidence before me is to the effect that the difficulties arose because Salima's family did not approve of the relationship between the applicant husband and Salima, and later held the applicants’ responsible for her suicide. I accept that the religion of the applicant husband as a follower of the Aga Khan may have been a factor in why Salima's family did not approve of the relationship. I also accept that a difference in social status may also have been a factor in Salima's family's animosity to the relationship. However, this does not mean that the reason for the adverse interests which the applicants fear now and in the future is owing to their religion or social status.
The evidence before me indicates that it is the death of Salima which reactivated the interest of Salima's family in the applicant husband and by association his wife. The applicant husband's evidence is that after he divorced Salima he had no further difficulties with her family. It was Salima's suicide which renewed his fear of harm at the hands of her family. Indeed the applicant wife was of no interest to the claimed protagonists at all until Salima's suicide.
Taking into account all the evidence before me I am satisfied that the applicants are involved or have been involved in a personal dispute and there is no Convention nexus. The applicants are not being targeted for reason of their religion even though the claimed protagonist, the father of the applicant husband's first wife is not a follower of the Aga Khan. Nor are the applicants being targeted for reason of membership of a particular social group constituted by social status.”
In SZDQL v Minister for Immigration [2005] FCA 769 Sackville J on appeal from a Federal Magistrate approved of the decision of the Full Court in VAF v Minister for Immigration (2004) 206 ALR 471 and at [55] Sackville J listed certain propositions which he held had been established by the authorities. He indicated s.424A(1) required identification of the reason for affirming the decision under review:
“In one sense the reason is usually the RRT’s lack of satisfaction that the applicant has a well founded fear of persecution for a Convention reason. However, some unbundling of the immediate reason for the decision is required for the purposes of 424A(1): Paul at [99]; VAF at [31].”
(3) The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms a part of the reason for the decision: VAF at [30]. Nor is it ordinarily enough that the information has some "general adverse relevance": Paul at [94].”
His Honour then went on to quote from VAF at [33]:
“When the Tribunal's reasons are to be evaluated for section 424A(1) purposes the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances a differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.”
That approach is binding upon me and to my mind is the appropriate one to take when considering claims that a Tribunal fell into jurisdictional error in relation to a decision. In this case the applicants have provided the court with some written submissions dated 16 March 2005. Those submissions make some reference to s.424A(1) and although they were written before the High Court handed down its decision in SAAP v Minister for Immigration [2005] HCA 24. I think it is appropriate to consider whether or not that case provides any assistance to the applicants. I do not think it does. The reason for this is that the essential reason for the decision of the Tribunal was that the applicants’ claims were claims which had no Convention nexus.
This view of the Tribunal was an assessment of the claim on the basis of the facts provided to it. The court cannot interfere with a decision on the facts, although this bald statement is somewhat qualified by his Honour Allsop J SZDFO v Minister for Immigration [2004] FCA 1192 where at [10] his Honour said:
“Conformably with High Court authority factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.”
Then continuing at [11]:
Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error.
It seems to me that there were undoubtedly facts from which the Tribunal could have come to the view it took about the claim made by both of these applicants. Having made this view clear it is not necessary for me to decide between the now many apparently conflicting decisions of the Federal Court on appeal from Federal Magistrates as to whether or not the type of comment made by the applicant in his application for review by the Refugee Review Tribunal and set out at CB [67] constitutes a republication of the material put before the delegate and therefore avoids the problems identified by Jacobson J in his well-argued decision NAZY v Minister for Immigration [2005] FCA 744. It may well be that these decisions can be distinguished.
It is well that I should rehearse the applicants' articulately made submissions for an adjournment of this case so that in any appeal those matters can be before the court. The respondent was ordered to file and serve her written submissions two working days before the hearing. She served them one working day before the hearing. The applicants had served their submissions on 16 March for a hearing that was due to have taken place on 27 April. The respondent's submissions were in answer to those submissions. The applicants told me that the late service of the submissions by the respondent placed them in a disadvantage because they could not obtain legal advice. They told me that they had received legal advice under the Minister's scheme, and the advice had been that they had a good case. Unfortunately, the person who gave them that advice did not seem to be prepared to act on their behalf, either pro bono or for money. The applicants, acting on that advice and with the assistance of friends, then put in their submissions, dated 16 March, which they believed would be sufficient to persuade the court to grant them review of the decision of the Tribunal. They say that it was only when they received the Minister's submissions one day before the hearing that they realised that they should obtain further legal advice.
I declined to grant them an adjournment on the basis that they really had had from 20 November 2003, when they filed their application with this court, to obtain a legal advice in connection with the decision of the Tribunal. I did not believe that the default in the Minister complying with the orders of the court by one day really affected the applicants' ability to have previously obtained legal opinion. If they had obtained a legal opinion and the legal adviser had informed them that the Minister's submissions raised matters of such difficulty that he or she was disadvantaged by the delay, I would have considered the matter sympathetically, but that was not the case. I also noted that the Minister's submissions were in response to those put up by the applicants themselves. They did not involve any new matters, although the SAAP point, which I alluded to before, was discussed.
Finally, I felt that the granting of an adjournment would be of little utility because it seemed to me so clear from the decision of the Tribunal that the reason for refusal of the visa was the failure of the applicants' claim to have a Convention nexus, that whatever might be said in support of other technical breaches of the Tribunal's duty not to fall into jurisdictional error, it would not outweigh that one important point which, as Sackville J has said, is the real matter that a court must consider.
In all the circumstances I dismiss this application. I order that the applicants pay the respondent's costs, which I assess in the sum of $4000, pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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