SZCJY v Minister for Immigration
[2005] FMCA 1917
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCJY v MINISTER FOR IMMIGRATION | [2005] FMCA 1917 |
| MIGRATION – Review of decision of RRT – where the applicant did not provide the Tribunal with detailed information to support his claims – where the Tribunal did not require the applicant to act in a particular way to avoid harm – whether the Tribunal fell into jurisdictional error through breach of s.424A Migration Act. |
| Migration Act 1958, s.424A, ss.424A(3)(b) Federal Magistrates Court Rules, Part 21 Rule 21.02(2)(a) |
| Appellant S395/2002 v Minister for Immigration (2003) 216 ALR 473 M55 v Minister for Immigration [2005] FCA 131 SZDMJ v Minister for Immigration [2005] FCA 1034 VUAV v Minister for Immigration [2005] FCA 1271 SZFEG vMinister for Immigration [2005] FCA 1405 NAZY v Minister for Immigration [2005] FCA 744 |
| Applicant: | SZCJY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 21 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 December 2005 |
| Date of Last Submission: | 19 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2005 |
REPRESENTATION
| Counsel for the Respondent: | Mr J A Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $2,900.00p pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 21 of 2004
| SZCJY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on 23 March 2003. On 22 April 2003 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 June 2003 a delegate of the Minister refused to grant a protection visa and on 30 June 2003 the applicant applied for review of that decision. On 30 September 2003 the Tribunal wrote to the applicant advising him that it had considered all the material before it but was unable to come to a conclusion favourable to him on that material alone. The Tribunal invited the applicant to a hearing on 10 November 2003 when he would have had the opportunity to give evidence and make submissions in support of his claim. On 29 October 2003 the Tribunal received a signed response to hearing invitation advising that the applicant did not wish to attend a hearing. The Tribunal therefore acted in accordance with the provisions of the Act and came to its decision without making further efforts to hear from the applicant. On 21 November 2003 the Tribunal affirmed the decision not to grant a protection visa and it handed that decision down on 16 December 2003.
When the applicant made his written application for a protection visa he completed a form 866C which included a statement setting out why he feared returning to India, who he thought might mistreat him if he returned and what he thought might happen to him if he returned. The form also requested and he responded with his views as to whether the authorities in India would protect him if he returned. These responses are found at CB17 to 20.
The applicant claimed that he was a Hindu supporter of the BJP Party in the town in which he had lived all his life. He claimed that he feared persecution from Muslim activists because of his association with the BJP Party. He claimed that after 2002 he had been attacked by Muslim extremists when he was returning from work one night and badly beaten. He was hospitalised for 15 days. Because of this incident and because his family had received constant threats to their lives, the family decided to leave their home town and move somewhere else but because of more extreme threats made directly to him it was decided that he should leave first and go to Australia. His wife and family have been left behind. The applicant did not believe that he or his family could be protected because there was corruption at senior levels in the police in his town.
The applicant completed a form when making his submission to the Refugee Review Tribunal. Section D of that form asks for his reasons in making this application and he states:
“Please refer to above file reference number CLF2003/22764.”
This is a reference to the file given to the delegate and includes the statement to which I have previously referred. The Tribunal used this statement as representing the applicant's current evidence since he had declined an opportunity to attend before it and provide some further detail.
The Tribunal considered the matters put by the applicant in the light of independent country information referred to at CB61 and its own knowledge of the state of political affairs in India. It noted that the applicant was a member of the majority religious grouping in the sub-Continent and was a member of the political party that was then in power. It noted the minimal detail and supporting information provided by the applicant and the incongruity of his evidence with the situation that the independent country information revealed and noted certain internal inconsistencies. The Tribunal came to the view that:
“The applicant's claims do not establish that he faces a real chance of serious harm or mistreatment on return because of his ethnicity, religion, nationality, membership of a political social group or political opinion.”
The Tribunal was unable to find any indication in the evidence that the applicant was likely to be targeted in any discriminatory way if violence returned to the country and did not accept the applicant's contentions concerning the corruption in the police force that would put him outside the protection of the State in the event of any harm occurring to him. At CB64 the Tribunal says:
“As noted in the country information cited above there is a history of violence between the Hindu and Muslim communities in India but the applicant's experience in dealing with this situation will, in the Tribunal's view, enable him on return to act with sufficient care as to avoid situations in which he would be likely to suffer violence.”
Mr Potts, who appeared on behalf of the Minister, rightly brought this quotation to my attention so that he could rebut any suggestion that it could be considered to be the Tribunal requiring an applicant to act in a particular way so as to avoid harm. If the Tribunal had done that it would have fallen into a jurisdictional error of the type described by the High Court in Appellant S395/2002 v Minister for Immigration (2003) 216 ALR 473. I am unable to see in this statement of the Tribunal a suggestion that he has to act in a particular way. I see it as no more than a presumption on the Tribunal's part that the applicant would take care with his person when he returns to his native land, possibly no more in situations of political violence than in crossing the road in a major Indian city. This is not the same as requiring a person with particular views or methods of expression to confine his or her behaviour, and I do not think that the phraseology used by the Tribunal can be stretched to find a jurisdictional error in it.
Mr Potts also points out that by adopting the applicant's history as provided to the delegate it could be argued that the Tribunal fell into a jurisdictional error by breach of s.424A of the Migration Act. This type of "error" has been considered by the Federal Court in a number of cases. See: M55 v Minister for Immigration [2005] FCA 131 at [25]; SZDMJ v Minister for Immigration [2005] FCA 1034 at [5-6]; VUAV v Minister for Immigration [2005] FCA 1271 at [10] and SZFEG vMinister for Immigration [2005] FCA 1405 at [34-36]. These cases support a view that republication in this manner is to constitute information provided by an applicant and thus brings itself within the exception found in sub-s.424A(3)(b) of the Act. In my view, even on the stricter test proposed by Jacobson J in NAZY v Minister for Immigration [2005] FCA 744, the words used by the applicant would clearly make the republication his decision and not that of the Tribunal. I do not think that any jurisdictional error can be found on this basis.
In the end this case is no more than one in which the Tribunal has failed to reach the state of satisfaction required of it because the applicant did not provide it with sufficient information to enable it to do so. He did not attend the hearing. He did not provide the additional information that he had promised to provide, and when he came before me today he was unable to say anything that was of assistance to his case. He kindly informed me that whatever I decided would be fine with him. I have decided that his case is untenable and I dismiss it. I order that the applicant pay the respondent's costs, which I assess in the sum of $2900.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for judgment of Raphael FM
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