SZFCE v Minister for Immigration - [2008] FMCA 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 52

MIGRATION – Review of RRT decision – where letter sent to one member of the family – whether compliance with requirements of s.441G Migration Act 1956 – whether failure to adjourn the hearing was a breach of s.425.

Migration Act 1958, ss.424A, 425, 441G

First Applicant:

SZFCE

Second Applicant:

SZFCF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2544 of 2006

Judgment of:

Raphael FM

Hearing date:

16 November 2007

Date of Last Submission:

30 November 2007

Delivered at:

Sydney

Delivered on:

23 January 2008

REPRESENTATION

Solicitors for the Applicant:

Crosslaw Lawyers

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00 of which $700.00 is, by consent, to be paid personally by Mr Knaggs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2544 of 2006

SZFCE

First Applicant

SZFCF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is the third application for review of a decision made by a delegate of the Minister on 20 October 2000 to refuse protection visas to the applicants who are a mother and a daughter from India. The application for a protection visa [CB 1 – 22] places the daughter NMD as the first applicant and the mother as the second. At [CB 23] there is a Form D completed on behalf of the mother. The heading of the Form D is in the following form:
“This part for a member of the family unit who does NOT have their own claims to be a refugee but is included in this application. If you DO have your own claims to be a refugee complete Part C instead.”
There is no Form C completed. The mother is referred to in the decision of the delegate at [CB 27] “as a member of the family unit not making specific claims included in this decision record”.
The mother and daughter are citizens of India who arrived in Australia on 17 June 2000. They are Muslims. The principal applicant appears to have had clerical positions in India but the claim to refugee status arose out of the destruction of her family catering business in Mumbai by RSS and BJP sympathisers. The principal applicant claimed that her property was burned down and the lives of her family were threatened.
Both the applicant and her mother appeared before the first constituted Tribunal on 1 May 2002. Reference to that Tribunal hearing is made by the third Tribunal in its reasons for decision [CB 145]. The third Tribunal notes that the applicant stated that her house was burned down in May 1998 along with the catering business which was run from home. She thereafter lived in a tent in camps. She was separated from her husband and as a result she felt unsafe walking in the street as Hindu people would try and rob her and tease her because she was a Muslim. The first Tribunal also queried with the applicant why she had allowed her mother to return from Australia to India in 1998 when in that time the first applicant was living in tents, her mother being old and frail.
At [CB 152] the third Tribunal commences to deal with the hearing before it on 14 June 2006. The applicant’s mother was unable to attend the hearing. She provided a medical certificate which indicated that she had sinusitis. The Tribunal notes that:
“The applicant stated that she was happy to proceed without her mother being able to give evidence. She confirmed that she was helped in completing the forms by her agent and that she read them before she signed them.”
At [CB 153] the Tribunal deals with some inconsistencies with the applicant’s address and her passports:
“The Tribunal stated that it seemed that two passports issued independently at different times were for an address which the applicant indicated was wrong. The applicant stated that it was possible that they made a mistake and they would change it if they got a new passport.”
The applicant was represented by an advisor at the hearing:
“The applicant’s advisor stated that the basis of the applicant’s claims was predominantly her religion. He stated that it does not go to “particular social group,” that is lifestyle, for example, gays, etc. The Tribunal asked about fear of Muslims themselves. He responded that if the applicant were divorced or separated she may be raped by Muslim men. It is not unlikely, but what she has experienced is Muslims being harassed by Hindus. … He stated that that she is separated from her husband and her brother who is a spastic and his wife have relocated to Gugarat for safety reasons.”
At [CB 156] the Tribunal took up with the applicant the possibility of her relocating within Mumbai or in India generally. The applicant claimed that she could not do this because as she had been separated from her husband she would be considered a ‘left-over woman’ and liable to be raped by fellow Muslims. The applicant indicated to the Tribunal that her complaints and fears arose not only from Hindus but also from Muslims [CB 157]. The Tribunal made several attempts to obtain from the applicant an indication of exactly what her fears were. These appear to be set out at [CB 159]:
“The Tribunal asked the applicant for her response. The applicant stated that she was scared of going back as single Muslim woman who will be targeted by Hindu people, being abused, sexually assaulted, to lack safety and shelter. The adviser addressed the applicant and stated that she had said that she was scared of Muslims. She stated that she was scared of Hindus mainly, but also people from her own country.”
At [CB 159] there is reproduced a very detailed s.424A letter sent to the applicant’s advisor on 16 June 2006 by the Tribunal. It deals first with the problems concerning the applicant’s passport address. The letter then deals with the evidence given by the applicant that she attended numerous courses including an inflight management services course which the applicant had stated had been paid for at least in part by the Jamat Neighbourhood Brotherhood. The Tribunal pointed out the inconsistency between this action and the applicant’s alleged fear of Muslim men treating her badly. The letter goes on to deal with other inconsistencies in statements made by the applicant and previous Tribunal hearings, the fact that the applicant had travelled to Pakistan and returned to India, the fact that her mother had travelled to Australia and returned to India and finally dealt with certain country information about the Indian constitution, the high number of Muslims living in the country and the availability of effective control of security forces. At [CB 161] the Tribunal states why the information and inconsistencies are important. The general thrust of the letter is that the inconsistencies would reflect adversely upon the applicant’s credibility particularly that regarding the evidence about where she lived as the Tribunal stated that this was central to her story. In regard to the country information the Tribunal indicated that:
“The country information does not indicate that the Indian authorities are unwilling or unable to protect you.”
The s.424A letter was replied to in considerable detail by the applicant’s advisor and this is extracted at [163–166]. At

[CB 175–177] the Tribunal analyses the questions and responses concluding that the applicant’s evidence lacks credibility and her responses had done little to assist her but in fact only served to indicate the unlikelihood of her story. The Tribunal also concluded from the applicant’s responses to questions in the application form and the manner in which it treated the subject of her marriage that the applicant was not a separated or divorced woman [CB 178-179]. It came to the conclusion that the property had not been destroyed by fire:
“Because the applicant is married and her property has not been destroyed by fire and she did not live in a tent but rather she lived at her passport address and because the Tribunal finds the applicant is not a credible witness the Tribunal rejects all the applicant’s claims relating to those issues. These include her claims in relation to being harassed by Muslims because they are predicated on her being separated or divorced. Clearly these claims would not persist in the future either. The Tribunal has, however, considered the applicant’s claims in relation to being harassed by Hindus when married. Her claims in relation to being harassed by Hindus as a divorced or separated Muslim woman have not been considered because the Tribunal has found that she is still married.”
The Tribunal found that any communal violence or harassment that the applicant might have suffered in the past was unlikely to reoccur and even if it did it would be subject to prosecution under Indian law:
“As such the Tribunal finds that the applicant will enjoy the meaningful protection of the Indian Police other security institutions in Mumbai.”
In an Amended Application under the Migration Act 1956 (the “Act”) filed on 3 December 2007 the applicant claims:
“(1)The Tribunal fell into jurisdictional error and denied to the applicants natural justice in that it failed to comply with ss.424A(a) and (b);
(2)The Tribunal made jurisdictional error and denied to the second applicant natural justice in that it failed to accord the second applicant recognition as a party and failed to address to her separately each and every notice, invitation and other communication which it was obliged to give to a party;
(3)The Tribunal made jurisdictional error and denied to the applicants natural justice in that it failed to comply with s.424(1) and did not have regard to country information it had obtained favouring a finding that they had a convention based claim for protection visas.”
In the applicant’s submissions the first point is dealt with in the following way:
“The notice under s.424A referred to in the decision at 159 and given in full at 111 is in very different terms that do not achieve (it has submitted) the full warning that the sub-sections require. True the notice starts off in terms of following sub-section 1A but at pages 114-115 of the Court Book (cited in decision pages 21-22) the terminology degenerates into a confusing notice that the information may reflect on the applicant’s credit or may indicate fabrication etc.”
What the Tribunal has done in the s.424A letter is to set out in the first ten paragraphs the matters about which it has concern. Some of this relates to evidence given by the applicant and some of it relates to independent country information. There is of course no necessity for the Tribunal to provide the applicant with a s.424A letter in relation to independent country information which is not about the applicant herself and the fact that it was included in a letter does not in any way add to the obligations imposed upon the Tribunal. After paragraph 10 the Tribunal then commences a new series of paragraphs numbered 1 to 10 which relates to each of the individual earlier paragraphs. Paragraph 1 relates to the earlier paragraph 1, paragraph 2 to the earlier paragraph 2 and so on. Each of these second series of paragraphs explains why the information is relevant. At the commencement of the letter the Tribunal had indicated that the information would, subject to any comments the applicants might make, be the reason or part of the reason for deciding that she was not entitled to a protection visa. In my view the Tribunal has provided the applicant with a very clear indication of matters which concern it regarding the applicant’s protection visa application. It has explained why those matters are of concern and it has indicated what the result of that concern will be unless those concerns are put to rest by the applicant’s response. It is clear from the length and detail of the applicant’s response through her advisor [CB 120-125] that these matters were understood. I am unable to say that the Tribunal fell into jurisdictional error in the manner claimed by the applicant.
In her submissions the applicant argues that the s.424A notice was required to be addressed to both applicants, herself and her mother. The letter under s.424A was sent to the authorised recipient as required by s.441G of the Act. The authorised recipient was identified in the response to hearing invitation form at [CB 79]. That form does not contain a signature, it contains a tick where the signature should be under the words “signed on behalf of and with the consent of all family members included in the application”. The named migration agent appeared on behalf of the applicants and responded to the s.424A letter which was sent to him but addressed to the main applicant and referred to him informing the second applicant, the mother. As the respondent says in his counsel’s helpful written submissions:
“In any event the answer to the … issue is found in the principles enunciated by Smith FM in SZKDB & Anor v Minister for Immigration [2007] FMCA 1036. This was a similar case which was decided by reference to the clear terms of s.441G of the Act. In short, section 441G required the Tribunal to address letters to the authorised recipient which it did. That the second applicant was not named as an addressee is not to the point. In SZKDB Smith FM noted at [34]:
“In cases of applicants who apply to the Tribunal as family members of a primary visa applicant, it would be manifestly absurd to construe the legislation as requiring that separate invitations to a hearing must always be sent addressed to every joint applicant.”
This observation must be taken to apply to all correspondence from the Tribunal and not just hearing invitations. See also SZIHI v Minister for Immigration [2007] FMCA 1332 per Raphael FM at [8] – [9] (where SZKDB) was followed) and SZDLA v Minister for Immigration [2005] FCA 1048 per Conti J at [43] – [44] where Conti J expressed a similar sentiment.”
I would respectfully adopt the submission contained above which is consistent with views that I have expressed in the past.
It is not clear whether the second ground of complaint raises a concern that the Tribunal did not treat the mother as an independent applicant who was entitled to a hearing and that the failure to adjourn the hearing for her to appear was a breach of s.425. If this criticism is obliquely made then I am of the view that it is not warranted. The Tribunal was dealing with an application that clearly indicated that the mother had no separate claims of her own. The daughter did not request an adjournment on behalf of her mother and the Tribunal, faced with the medical certificate acted, as it was entitled to, by continuing the hearing. Whilst the mother had given evidence at previous hearings that was to back up her daughter’s claim and not to advance an individual one of her own.
The final claim made by the applicant relates to the independent country information which the Tribunal used to satisfy itself that the applicant would not be the subject of persecution in the limited area that the Tribunal had identified. I am unable to see how it is alleged that the Tribunal did not have regard to that information which is set out in some detail in the decision itself [CB 166-170] and referred to in the findings and reasons. It was unnecessarily referred to in the s.424A notice so the applicant had a clear understanding of what was to be put against her. I am quite satisfied that the Tribunal complied with s.424(1) of the Act in this regard.
The applicant has been unable to satisfy me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order that the Applicants pay the First Respondent’s costs which I assess in the sum of $5,000.00 of which $700.00 is, by consent, to be paid by Mr Knaggs personally.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: