SZCFB v Minister for Immigration - [2006] FMCA 238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCFB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 238

MIGRATION – RRT decision – Indian feared persecution by sister‑in‑law’s family – disbelieved by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth)s.8
Judiciary Act 1903 (Cth)s.39B
Migration Act 1958 (Cth), ss.91S, 418(3), 424A(1), 424A(3)(a), 430D, 474(1), 483A, Pt.7 Div.5, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZCFB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2776 of 2003

Judgment of:

Smith FM

Hearing date:

13 February 2006

Delivered at:

Sydney

Delivered on:

13 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr P L Carr

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2776 of 2003

SZCFB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 16 December 2003 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision by a delegate refusing a protection visa to the applicant. The Tribunal announced its decision orally at the conclusion of a hearing attended by the applicant on 20 November 2003, and later forwarded to the applicant its written decision and reasons pursuant to s.430D of the Migration Act.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in May 2003. On 24 June 2003 he applied for a protection visa. His application form does not show any assistance by an agent, but the applicant told the Tribunal that he received assistance from a helper. His form, as completed, recounted his claims to seek protection in Australia against return to his country of nationality, India.
I consider that the Tribunal accurately summarised his claims in its reasons:
He claims that his younger brother fell in love with an “out caste religion girl”. He went to speak to her father and family about the possibility of marriage however when they found out that he was from a different caste they would not agree. He claims that his brother and the girl would not accept this and so he took them to the “arya samaj and they got married there”. The girl’s family were angry and looked for him to kill him. The girl’s two brothers are solicitors with links to political parties and the police. The girl’s family considered his family to be “common people so they started pressuring me that’s why it was better for me to leave the country”. The applicant claims that one day the girl’s brothers came to his bakery and caused damage to furniture. He claims that he was not there otherwise they would have killed him. He also claims that he could not complain to the police as they “were under the hand” of the brothers and were corrupt. He claims that he then had to sell that bakery and move to another area where he started another bakery. The brothers came to know of this and again caused him trouble and made his life miserable. He is scared to return as the brothers are still angry with him and may kill him. They may kidnap him, kill him and then dump his body in the countryside. He claims that the authorities will not protect him as they are corrupt and her brothers are solicitors.
The Tribunal’s statement of reasons indicates that the applicant was accompanied by his brother and sister‑in‑law, and that they also made unsuccessful protection visa applications. However, the Tribunal conducted a separate hearing in relation to the applicant’s matter, and its decision addressed only his claims. Its decisions in relation to his brother and sister‑in‑law are not the subject of the present proceeding.
A delegate refused the application on 8 August 2003. In his reasons, the delegate said that he thought that the applicant’s claims “relate to individual acts of revenge and criminality towards the applicant and his family, rather than acts of persecution for a Convention reason”. The delegate also thought that the applicant would be able to return to another part of India.
The applicant filed an application for review by the Refugee Review Tribunal on 28 August 2003. His application included a repetition of his claims which had accompanied his visa application, but no supporting documents.
The application form drew the applicant’s attention to the possible need for supporting documents. It said: “with this application you should give us any information, documents or submissions that you want the Tribunal to consider, or send them to us as soon as possible”. The applicant was also reminded of this in a letter sent to him on 1 September 2003 acknowledging the application. In this respect, I note that the applicant had said in his visa application form that he spoke, read, and wrote in English.
The applicant was sent a letter on 20 October 2003, inviting him to attend a hearing on 20 November 2003. The letter told him: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”. The letter again invited the applicant to send the Tribunal “any new documents or written arguments you want the Tribunal to consider”.
The applicant attended the hearing, and the best evidence I have as to what occurred is in the Tribunal’s reasons. The applicant admitted that when his visa form was filled out he had made at least one false statement in relation to his place of education, so that “the story would sound better”. The applicant also told the Tribunal that he had originally wanted to apply for a business visa, before being advised that he had no chance for such a visa and that he should apply for a protection visa.
He told the Tribunal that he had started his bakery in Hyderabad in 1996. In January 2003 he had twice visited Bombay to consider setting up a bakery there, returning to Hyderabad. The Tribunal said:
He claimed that in Hyderabad he and his family (brother and sister‑in‑law and female cousin) from the family of the sister‑in‑law as she was from a different caste – which he said was Punjabi. It was put to him that no such caste exists in the Indian caste system. After discussing the concept of caste with the applicant it was apparent that he did not know what caste his sister‑in‑law belonged to and indeed he had little understanding of the caste system. It was put to him that in such circumstances the Tribunal had difficulty in accepting that the problem with the sister‑in‑law’s family had anything to do with caste.
Under the heading “Findings and Reasons”, the Tribunal explained three independent reasons for affirming the delegate’s decision. Its first reason was that the Tribunal did not accept that the applicant’s claims were true, and said that it considered that “he has fabricated them for the purpose of advancing his claims for a protection visa”. The Tribunal considered that “in fact the applicant has sought to come to Australia for business reasons”.
The Tribunal’s second reason was that, even if his claims were true in relation to harm feared from the sister‑in‑law’s family, his claim would fall within the scope of s.91S of the Migration Act. This requires a decision‑maker to disregard fears of persecution by reason of belonging to a family unit, where that fear derives from another member’s fear of persecution for non‑Convention reasons. The Tribunal thought that the applicant’s fear of the sister‑in‑law’s family was “because she has married without their approval and [they consider] her husband’s family to be common”.
The third reason given by the Tribunal was that “even if he feared a local harm in Hyderabad he can relocate anywhere else in India”.
I consider that the Tribunal’s finding in relation to the applicant’s credibility was clearly open to it on the material, and represented its primary reason. I therefore do not need to examine whether the Tribunal’s two additional reasons reveal any error. However, I am not persuaded that they do.
The applicant’s application filed in this Court on 16 December 2003 claims that “the facts have not been considered” by the Tribunal, without identifying what facts are claimed not to have been considered. Paragraph 2 says only that “[the member] ignored the fact that I am a right person for refugee”. However, this does not raise a jurisdictional error.
The applicant filed an amended application. Ground one alleges that the Tribunal failed to follow “procedural fairness as required under section 424A(1) and section 418(3) of the Migration Act 1958”.
The particulars of this ground are found, if at all, under the heading “Particulars: 1”, where it is claimed that “the tribunal did not provide me particulars of information from the Australian Embassy reports, which formed the reason of the tribunal’s decision”. The only such information concerned the freedom of Indians to relocate from one area of India to another. However, that information was not the subject of a duty under s.424A(1) by reason of the exclusion in s.424A(3)(a).
Section 418(3) places duties on the Secretary which cannot give rise to jurisdictional error vitiating a decision of the Tribunal (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [21], [42]‑[48], [56], [179]‑[180], [250]‑[251], [318] and [326], c.f. Kirby J at [219] and [225]; also Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936 at [35]‑[36]).
Moreover, there is no substance in the contention that in the present matter the Secretary failed to comply with s.418(3) by failing to give the Tribunal’s registrar “part B documents in his possession or control”. The only Part B documents referred to in the delegate’s decision were the Department’s file in relation to the visa application and the UNHCR handbook, and there is no evidence that these had not been given to the Tribunal.
Ground two of the amended application alleges that “a breach of the rules of natural justice occurred in connection with the making of the decision”. No particulars of this claim are given, and the applicant did not file a written submission to explain it.
Today, his complaint was that the Tribunal denied him an opportunity to put forward further documents in support of his claim. He made unclear statements as to what had been said about this at the hearing, and did not present any sworn evidence. A transcript of the hearing has not been put into evidence, and I am not satisfied that he ever requested the Tribunal for any additional time.
Moreover, as I have recounted above, the applicant had been on clear notice from the inception of his appeal of the need to consider whether to put forward documents to the Tribunal prior to the hearing. He had many months in Australia to prepare his case to present to the Tribunal. I can see no evidence of any unfairness in the Tribunal deciding his case at the conclusion of the hearing.
Ground three in the amended application claims that the Tribunal erred by “taking an irrelevant consideration into account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power”. The only particular bearing on this ground which is provided is that the “Refugee Review Tribunal did not consider whether or not the Indian Government was unwilling to offer adequate protection upon my return”. However, the course of reasoning followed by the Tribunal did not require it to consider that aspect, since it had formed the view that the applicant’s claims of persecution were untrue.
Apart from the matters which I have dealt with above, the only additional complaint made by the applicant when attending today’s hearing was that the Tribunal made its decision at the end of the hearing. However, Division 5 of Part 7 of the Migration Act envisages that the Tribunal may in some cases be able to reach a decision at the end of a hearing, and allows that procedure. I am not persuaded that in the present case the Tribunal’s adoption of that procedure was attended by any jurisdictional error.
For the above reasons, I have decided that the Tribunal’s decision was not affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 23 February 2006