SZEQW v Minister for Immigration - [2005] FMCA 1697

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEQW v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1697

MIGRATION – RRT decision – Sikh claiming persecution as a lesbian – did not attend Tribunal hearing – judicial review application dismissed for non‑attendance – explanation for absence not accepted – no merits – application to reinstate refused.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05(2)(a)

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.483A, Pt.8

NBHP v Minister for Immigration [2005] FMCA 998

Applicant:

SZEQW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3269 of 2004

Judgment of:

Smith FM

Hearing date:

7 November 2005

Delivered at:

Sydney

Delivered on:

7 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms O Mak

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant’s application under r.16.05(2)(a) to set aside orders made on 4 October 2005 is refused.
The applicant must pay the first respondent’s costs in the sum of $1,200 in addition to the amount ordered on 4 October 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3269 of 2004

SZEQW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The substantive application in this matter is an application 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”) dated 30 September 2004 and handed down on the 26 October 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The matter is listed today on the applicant’s application. She seeks an order setting aside an order I made on 4 October 2005. Her case had been listed for hearing on that day after two previous listings for hearing were adjourned. A hearing set down for the 24 June 2005 was adjourned after the applicant forwarded a medical certificate suggesting that she was suffering from “FLU”. The listing on the 5 July 2005 was adjourned because I was not satisfied that the applicant had received sufficient notice of that listing. On 4 October 2005 I was satisfied that the applicant had been properly notified of the hearing date, and dismissed her application in her absence under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001.
At an earlier stage of the proceeding her application had been dismissed on 3 December 2004 for a failure to appear at a first court date on two occasions. She appeared before me on 11 April 2005 when I gave her the benefit of the doubt in her claims not to have received notice of that date, and reinstated her application.
As well as a history of absences from court listings, the applicant has not filed any documents in support of her case notwithstanding directions intended to achieve this. The merits of her case therefore must be found, if at all, in her original application filed on 5 November 2004. As I shall indicate below, in my opinion, it has no merit.
The present application to set aside my previous order was supported by a purported affidavit. I say ‘purported’ because the applicant today said on oath that she signed the document, which is in English, without being able to read English, and without any certification that the document was properly translated to her. She also said that she signed the document without being presented to the Justice of the Peace who purports to witness her affidavit. Indeed, she says she was in Griffith when she signed the document. The affidavit purports to carry the signature of a Justice of the Peace at the Bland Centre Pharmacy, 229‑231 Macquarie Street, Sydney. On her own evidence therefore the applicant is a person who will sign a document in support of her case without proper attention to its nature or content. I can give the purported affidavit no credibility.
In her oral evidence, she had great difficulty recalling a reason for not attending the hearing date on 4 October 2005. She then claimed she had had an accident in her bus on her way to Court which delayed the bus. However, this claim is uncorroborated and I do not accept the truth of it. I am not satisfied that the applicant has established a satisfactory reason for her absence from her hearing which had been set down.
However, more significantly, I rest my decision to refuse to set aside my previous order by an examination of the merits of her case.
The applicant had extensive visits to Australia between 1993 and 1999, and arrived again in May 2000. In her application for a protection visa lodged on 10 June 2004, she indicated that she was a 55‑year‑old Indian national of Sikh religion. She said that she had married and lived with her late husband until he died in 1989, when she moved to the Punjab. She said:
After the death of my late husband, life became so lonely and then both my family and my late husband’s family decided that it was time for me to get married to another man after over ten years of loneliness. But I told them that I don’t want to have any other man in my life. The pressure on me to get married increased every day.
Eventually in early 2000 my sexual preference and interest changed. I decided to become a lesbian. So after much pressure from both families and the Sikh community in Punjab, I told them that I wanted to become a lesbian. My decision angered them and they threatened to kill me if I do not change my mind. All attempts to get me to marry a man failed. In order to escape the pressure, I decided to travel to Australia in February 2000 for a short holiday hoping that the tension will go down by the time that I return to India. So, I departed Australia in April 2000 and went back to Punjab, India. On my arrival both families and the Sikh community monitored me and they found out that I was in a lesbian relationship. Hence they threatened to kill me because it was a taboo because of our religion.
The applicant claimed to fear that her family, the family of her late husband, and the Sikh community in India would harm or kill her because of her sexual preference. She claimed that the government of India would not protect her because it “is against the practice of lesbians and homosexuals in India”.
No more detail was given of any of these claims in the documents forwarded to the delegate, nor eventually sent to the Tribunal. A delegate refused the application on 18 June 2004. His statement of reasons, which was sent to the applicant, indicated clearly: “The applicant has provided no evidence of any description to substantiate her claim to be at risk of persecution in India as a homosexual”. The delegate also drew attention to her previous travel to Australia and the delay in making an application for a protection visa until June 2004, and said: “I find that it is reasonable to conclude that her claims do not represent the reality of her situation”.
The applicant applied for review by the Tribunal on 2 July 2004 without any apparent assistance. No supporting material was forwarded and no attempt was made to respond to the reasoning of the delegate. The Tribunal’s acknowledgement of the application sent to the applicant on 2 July 2004 drew attention to the importance of a hearing as “your opportunity to give the Tribunal evidence to support your application”.
The applicant was sent an invitation to attend a hearing by letter dated 13 September 2004. The letter appointed a hearing for 2 November 2004. On 30 September 2004, the Tribunal received a document by facsimile signed by the applicant. In this “Response to Hearing Invitation” form, the applicant said in response to the question: “Do you want to come to a hearing?”:
NO, I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The Tribunal then proceeded to make a decision which it handed down on 26 October 2004. Although at one stage I had a concern whether the Tribunal was empowered by the Migration Act to proceed in reliance on such a consent by making a decision before waiting for an appointed hearing date, I have addressed that issue in NBHP v Minister for Immigration [2005] FMCA 998 at [25]‑[44] in which I concluded the Tribunal did have the power which it exercised in the present case. I adhere to the opinions expressed in that judgment. The applicant was given an opportunity at an earlier stage in this proceeding to address an argument on the issue to the Court, but did not do so. I consider that there is no prospect that I would change my opinion if the present matter were reinstated in my list.
The Tribunal’s reasoning for affirming the delegate’s decision was unsurprising. It said:
On the basis of the available information, the Tribunal is satisfied that the applicant is a citizen of India and that she is outside that country.
The applicant has not indicated whether she is in a relationship currently, nor has she provided any details about any past relationships in which she may have been involved. Apart from a vague reference about being in a lesbian relationship in April 2000 in her response to Question 41 of Form C, the applicant has not given any indication about her relationship(s). Essentially, she has merely asserted that she is a lesbian who has suffered ill‑treatment. The applicant has not provided any evidence supportive of her claims. She has not attended a hearing despite the fact that she was put on notice that on the basis of the available information, the Tribunal could not make a favourable decision on that material alone. The Tribunal is satisfied that the applicant has been given a proper opportunity to support her application both at the primary level as well as at the review stage.
Without further details, corroborative evidence and without having had the opportunity to explore the claims with the applicant at a hearing, the Tribunal cannot be satisfied that the applicant is a lesbian, nor can the Tribunal be satisfied that the applicant was threatened by family members and or members of the Sikh community in Punjab. In summary, on the basis of the available information, the Tribunal cannot be satisfied that the applicant had suffered any Convention-related harm or that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal cannot be satisfied that the applicant has a well‑founded fear of persecution for a Convention related reason.
The principal application filed in this Court contends three grounds for judicial review. These claim that the Tribunal:
1.failed to investigate my sexual preference and claims of being a lesbian.
2.ignored relevant materials (my claims) or failed to obtain relevant information to assist the Tribunal in making a lawful decision.
3.failed to investigate if the authorities in India would be able to offer me effective protection.
There is no substance in any of these three grounds. Plainly, the Tribunal did identify the claims made by the applicant and was unable to be satisfied as to their truth in the absence of more detail and the attendance of the applicant at a hearing.
The applicant today has presented no written submissions pointing to merit in her principal application, and declined my invitation to make oral submissions addressing this issue.
I can see no prospects whatsoever of the substantive application in this case succeeding if I were to reinstate it. I therefore consider it would be futile for me to set aside my previous order dismissing the application. For those reasons, I refuse to do so.
RECORDED : NOT TRANSCRIBED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 November 2005