SZCKL v Minister for Immigration - [2005] FMCA 501

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCKL & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 501

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicants a protection visa – Applicants are citizen of India – the claim that “the Tribunal denied the evidentiary proof of my claim” is not a ground for judicial review – no reviewable error – applicants who choose not to attend the RRT hearing cannot be heard to complain if the RRT does not make a decision in their favour.

Migration Act 1958 (Cth), s.426A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant:

SZCKL

Second Applicant:

SZCKM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 41 of 2004

Delivered on:

7 April 2005

Delivered at:

Sydney South

Hearing date:

7 April 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicants:

In person

Solicitor for the Respondent:

Ms Knight

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicants are to pay the Respondent’s costs fixed in the sum of $2,200.00.
The hearing date scheduled for 22 August 2005 be vacated.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 41 of 2004

SZCKL

First Applicant

And

SZCKM

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of the decision of the Refugee Review Tribunal made on 14 November 2003 and handed down on 10 December 2003. In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicants.
The Applicants are citizens of India. They are husband and wife. They arrived in Australia on 14 May 2003. On 18 June 2003 they lodged an application for protection class XA visas. On 30 June 2003 a delegate of the Minister refused to grant those visas.
The Applicants sought a review by the Refugee Review Tribunal. On 16 October 2003 the Tribunal wrote to the principal Applicant, the husband, advising that it had considered all the material before it relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the principal Applicant to give oral evidence and present arguments at a hearing on Tuesday, 11 November 2003 at 10 am.
The Tribunal did receive a response to the letter. The Applicants said they did not want to come to a hearing. Neither Applicant appeared before the Tribunal on the hearing day. The Tribunal proceeded to make its decision without taking any further action to enable either of the Applicants to appear. The Tribunal proceeded to make its decision. The Tribunal has this power under s.426A of the Migration Act. Not surprisingly in the circumstances, the Tribunal did not take a favourable view of the application. At page 78 of the Court Book, the Tribunal member said:
The Applicant was advised that I was unable to make a decision in his favour on the information provided in his primary application and in his application for review and, apart from not providing any further information, the applicant chose not to accept the invitation forwarded to him to appear in person to present his claims and have them examined and clarified. The Applicant has had ample opportunity to present his case. Not only did he not attend the hearing offered to him when preparing his application for review, he chose not to address the issues raised by the delegate in his or her decision.
The Tribunal member went on to say:
In the context of his not addressing the reasons of the delegate, not providing either meaningful particulars or supporting evidence for any of his claims and not appearing before this Tribunal to present and explain his claims in detail, I cannot be satisfied that any of the applicant’s claims are true. In any event, even if the Applicant’s land had been taken over by a mafia group, this is clearly an illegal act by organised crime. It is a matter for the Indian police and the Indian civil and criminal courts. It is not for a Convention reason and in the absence of detailed evidence from the Applicant, I am not prepared to accept that effective protection from the Indian authorities in the Applicant’s locality is not available to him.
Now, turning to the Applicants’ application: On 7 January 2004 the Applicants lodged their application at this Court. In that application they sought orders to redirect their claim back to the Refugee Review Tribunal for further consideration. The grounds of this application I will set out in full:
(a)   The Tribunal made his decision in bad faith;
(b) The Tribunal denied the evidentiary proof of my claim;
(c)   The Tribunal deprived me of the natural justice;
(d) The Tribunal mixed up many facts with this decision which affected the decision;
(e)   The Tribunal has given a decision which was pre-set in the back of its mind;
(f)   The Tribunal’s decision did not reflect the material facts of my claim.
The application was listed for directions 1 April 2004. On that day, the application was listed for final hearing on 22 August 2005. The Applicants were not legally represented, but they had the assistance of a Gujarati interpreter. The parties consented to orders that required the Respondent to file and serve a bundle of relevant documents by 23 April 2004 and required the Applicants to file and serve any affidavits upon which they intended to rely on or before 11 June 2004.
The Applicants were also referred to a lawyer on the RRT Legal Advice Scheme Panel, a Mr V Hooton. The bundle of relevant documents, known as the Court Book, was filed on 29 April 2004. There is no evidence on the Court file to show that the Applicants have filed any affidavit or any document particularising their claim, either by 11 June 2004 or at all.
The Applicants did attend the hearing today. They were not represented by a lawyer before the Court. They had the assistance of an interpreter in the Gujarati language. They indicated that they could not speak English and that their application to the Court was prepared by a friend. That friend has gone back to India. When asked about the letter of invitation to the Refugee Review Tribunal hearing, the Applicant said, “As I do not know English, I do recall I received a letter from a solicitor. I kept the letter”. The Applicants said that they did not intend to have a lawyer appear on the final hearing. The Applicants conceded that they did not attend the RRT hearing. They said they were not sure what the letter was about.
I asked them about the claims in their application. Dealing with the claim that the decision was in bad faith, the Applicants did not know how to explain that. They indicated that they were not educated people and did not speak English. When asked what error the Refugee Review Tribunal had made, they said that they were not aware that the Refugee Review Tribunal would give such a decision as it did make. They also indicated that whatever the Court said, they would accept.
The basis of the Applicants’ claim is that there are people in India who have tried to force them off their land and made threats to them. This is why they are refugees. The police do not help people like them. These people give money to the police, so the police do not assist people like the Applicants.
Turning to the application itself, the application does not provide any evidence of any reviewable error. Grounds (1) the allegation is bad faith, (3) the allegation that the Applicants were deprived of natural justice, and (5) the allegation that the Tribunal gave a decision that was pre-set in the back of its mind, are not supported by any evidence whatsoever. I have read through the Tribunal’s decision carefully and I can see no evidence at all of any bias, bad faith, procedural unfairness, prejudice or failure to provide natural justice.
Grounds (2) denial of the evidentiary proof of the Applicants’ claim, (4) the allegation that the Tribunal mixed up many facts, and (6) the claim that the Tribunal’s decision did not reflect the material facts of the Applicants’ claim, amount to nothing more than an application for a merits review of the claim. I particularly point to the ground:
The Tribunal denied the evidentiary proof of my claim.
This particular ground appears quite frequently in applications for review of a decision of the RRT. It is nothing more than a complaint that the Tribunal did not accept the Applicants’ case. It is not a ground for judicial review. It is an application for a further hearing on the facts. It is quite clear that it is for the Tribunal to decide the merits of a claim, not the Court conducting a judicial review. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal did consider the Applicants’ claim, such as it was. Applicants who do not attend a Tribunal hearing without good reason cannot be heard to complain that the Tribunal did not give them the decision they sought. The Applicants have not complied with the directions made on 1 April 2004 to provide particulars of their claim in the form of an affidavit. The application does not show any reviewable error and my own perusal of the decision has failed to find any error on the part of the Tribunal. The application will be dismissed. I require a transcript of my reasons for this decision.
This is a matter where I consider an order for costs is appropriate.

I note that the sum sought is $2200, which is well within the range that the Court would award. I will order a transcript of my reasons for this decision and I will vacate the hearing date on 22 August. I make the orders according to the Schedule.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 18 April 2005