SZGFI v Minister for Immigration - [2006] FMCA 1820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGFI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1820

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants fearing persecution in India for reason of religion and political opinion – asserted breach of s.424A of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.36, 422B, 424A, 430

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration [2004] FCAFC 10

First Applicant:

SZGFI

Second Applicant:

SZGFJ

Third Applicant:

SZGFK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1148 of 2005

Judgment of:

Burnett FM

Hearing date:

6 December 2006

Delivered at:

Sydney

Delivered on:

8 December 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The first and second applicant’s are to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1148 of 2005

SZGFI

First Applicant

SZGFJ

Second Applicant

SZGFK

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Migration Act”). The relevant decision was handed down on 20 April 2005.

The Tribunal’s decision was one affirming the decision of the Delegate not to grant protection visas to the applicants.

Background facts

Each of the applicants are members of the one family unit. The first applicant is the substantive applicant in that he claims to be entitled to a protection visa as a Convention party. The second and third applicants are the first applicant’s wife and son and claim a visa entitlement pursuant to s.36(2)(b) of the Migration Act.
The first applicant is a male person aged 40 (DOB 22.10.66) born in Pune, India. He is a citizen of India and has been since birth.

He speaks four languages, including English, Hindi, Urdu and Arabic and belongs to the Muslim ethnic group and describes his religion as Muslim. Prior to travelling to Australia he described his occupation as “self employed – own business”. He and his family departed India on 24 January 2004, arriving in Australia the next day, 25 January 2004. He travelled to Australia and used an Indian passport to obtain entry to Australia. His Indian passport was stamped with an Australian visa, issued at Mumbai on 19 January 2004 and valid until 25 February 2004.
In his visa application the first applicant disclosed that in the years preceding his departure from India in 2004 he had departed India on other occasions for business in Kuwait and Saudi Arabia. His application for a protection visa was made on 25 February 2004 and raised as a Convention reason his religion and in particular his membership of the “Muslim Student Federation”. He alleged those matters gave rise to instances of unlawful arrest and detention of him, together with instances of he being subject to verbal and physical abuse. He also complained that his life had been threatened on many occasions by Hindu extremists.
By letter dated 27 February 2004 the applicant was informed that his protection visa application lodged on 25 February 2004, had been refused because he did not satisfy the criterion necessary for the issue of a protection visa (all correspondence was directed to the first applicant but concerned each of the applicants generally). A record of the reasons for the rejection of the application was attached.

In particular, the record of reasons noted that although the Delegate accepted information indicated a level of violence related to religious and political aspects of Indian society, there was no indication that the violence was condoned by the authorities or that they did not make every effort, given their resources, to control it. The Delegate noted that the first applicant had provided no evidence of any kind to substantiate his claims and that even if there was some basis to conclude he did have a basis for fear because of the political and religious problems as alleged there was a fully functioning legal apparatus and network of human rights organisations in India through which he could seek redress for any real or perceived wrongs that he had experienced. The Delegate concluded that he considered the first applicant was not a person to whom Australia had protection obligations under the Refugees Convention and accordingly refused to grant the applicant a Protection (Class XA) visa. The Delegate proceeded to note that as the first applicant had not been granted a Protection (Class XA) visa he was satisfied that the second and third applicants listed at part A of his decision (being the other family members) did not satisfy s.36(2) of the Migration Act and the prescribed criterion in sub clause 866.222 for the grant of a Subclass 866 (Protection) visa. Accordingly, he also refused to grant a Protection (class XA) visa to those applicants.
The applicants proceeded to file an application for review of the Delegate’s determination with the Tribunal. That application was received by the Tribunal on 25 March 2004. It was filed within the time permitted for the filing of such an application. In the application the first applicant maintained his assertion that he was a refugee and that he fell within the refugee definition in the UN Convention by reason of the matters identified in his initial protection visa application.
The Tribunal wrote on 26 March 2004 informing the applicants that it had received their application and outlining briefly the procedures which the applicants could expect leading up to the Tribunal hearing.
By letter dated 14 April 2004 the Tribunal extended an invitation to the applicants to attend at the hearing which was to be conducted on Monday, 7 June 2004 commencing at 10.00am. A response to hearing invitation form was enclosed with that letter and was completed and returned by the first applicant. It was received at the Tribunal on 29 April 2004. The response to hearing invitation indicated that the applicants (including other family members) did not require a separate hearing in respect of any such family member and that they otherwise did require the services of an interpreter in the Hindi language.
By subsequent letter dated 2 June 2004 the applicants were informed that the hearing time had been put back from 10.00am on 7 June 2004 to 11.00am on 7 June 2004. It appears from the Court record that the hearing proceeded at that time (Court Book, page 81).
It appears that between 7 June 2004 and 15 October 2004 the Tribunal was reconstituted due to the retirement of member Gutman. The Tribunal was reconstituted to a member Mojsin. Accordingly, the Tribunal wrote to the applicants by letter of 15 October 2004 informing them that if they wished to make any additional submission to the Tribunal, that should be done on or before 5.00pm on 29 October 2004.
It appears from the Court record (Court Book, page 83) that the applicant (I assume that to be the first applicant) in fact called on 1 November 2004 to inform the Tribunal that he was going to “fax through some certificates”. I am uncertain if this occurred but in any event do not consider that anything turns on this matter.
By letter of 2 November 2004 the Tribunal again wrote to the applicants. On this occasion the Tribunal informed the applicants that it had information that would, subject to any comments the first applicant made be the reason, or part of the reason, for deciding that the first applicant was not entitled to a protection visa. The letter then proceeded to detail with some particularity matters raised by the Tribunal. After particularising the information troubling the Tribunal the letter concluded by inviting the first applicant to comment upon that information. The applicant was informed that his comments were to be in writing and in English and to be received by the Tribunal by Thursday, 25 November 2004. The applicant was further informed that if he did not give comments by that time, the Tribunal might make a decision on the review of his case without further notice.
The letter of 2 November 2004 clearly satisfied the requirements of s.424A of the Migration Act. That provision imposed upon the Tribunal an obligation to give to an applicant particulars of any information the Tribunal considered would be a reason or part of a reason for affirming the decision under review and to ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review and inviting the applicant to comment upon it.
Despite having given the notice in accordance with s.424A the information identified in the Tribunal’s notice appears to be information which was subject to the caveat provided for in s.424A(3). In other words, it was not information that had to be brought to the applicant’s attention in accordance with s.424A(1) because the information was information that was not specifically about the applicant or another person and was just about a class of persons of which the applicant or the other person was a member. In other words, it was “country information”. I assume, however, that the Tribunal, out of an abundance of caution and in order to be transparently fair in its dealings with the applicants, gave the applicants this information in order to fully inform the applicants of the concerns the Tribunal had relating to their application.
By letter dated 16 November 2004 the first applicant acknowledged receipt of the Tribunal’s letter of 2 November 2004 and addressed the information identified by the Tribunal in their letter.
By letter of 1 April 2005 the Tribunal wrote to the applicants informing them that the Tribunal had considered all the material relating to their case and inviting them to attend at the Tribunal on 20 April 2005 for the handing down of the decision. On 20 April 2005 the Tribunal handed down its decision at which time it determined to affirm the Delegate’s decision not to grant protection visas.
In its decision the Tribunal detailed in the section entitled “Claims and Evidence” some of that material which was referred to in its letter of 2 November 2004. In particular, the Tribunal identified its consideration of the US State Department Country Reports on Human Rights Practices in 2002 from India, which had been referred to in its letter of 2 November 2004. In that part of its decision it also referred to two other documents considered, namely the 1992 UN High Commissioner for Refugees’ Handbook and the 2002 Annual Report on International and Religious Freedom 2002. These two documents were also referred to in the Delegate’s decision and concerning which the applicant would clearly have been on notice notwithstanding the failure to refer to those matters in the letter of 2 November 2004.
In its findings and reasons the Tribunal proceeded to consider the factual material presented by the applicant to it in support of his application. In its examination of the facts the Tribunal rejected the applicant’s explanations and his expressions of concern. The Tribunal was satisfied that the applicant did not suffer a Convention related harm in India and did not accept that the Indian government did not protect Muslim minorities. The Tribunal noted that it was not satisfied that the country information indicated a pattern of persecution of Muslims in India or that the State was indifferent or unwilling to act when attacks occurred. The Tribunal concluded that it was “not satisfied that the independent evidence supports the applicant’s claim that he would not obtain State protection in India”. The Tribunal was satisfied the applicant, a Muslim, was able to return to India.
Upon that basis the Tribunal determined that the applicant did not satisfy the criteria set out in s.36(1)(a) of the Act for a protection visa and, accordingly, the fate of the applicant’s wife and child, having depended upon the outcome of the applicant’s application, followed that event. Accordingly, the applicant’s wife and child did not satisfy the alternate criteria set out in s.36(2)(b) of the Act and also could not be granted protection visas.
The applicant filed his application for review of the Tribunal’s decision on 4 May 2005.

Grounds for review

The application for review was filed within time. The application itself was subsequently amended by an amended application filed on 26 August 2005. In its amended application the applicant raised nine grounds for review. In summary, the grounds were:
(1)As a matter of fact the applicants fulfilled the “four key elements” for an entitlement to a protection visa.
(2)The Tribunal relied upon “independent information from other countries” and in so doing failed to rely upon “real facts faced by the applicant and has acted on indirect and incorrect and foreign information”.
(3)The Tribunal erred in finding that because the applicants were able to leave India without difficulty “the security in airports of India are strong” and thereby committed error.
(4)The Tribunal erred by relying upon some country information provided by foreign sources in preference to “the real factual situation”.
(5)The Tribunal made a general summary and “restricted itself to a narrow circle and everything the applicant stated has not been accepted”.
(6)The Tribunal “only considered the third party foreign sources”.
(7)The Tribunal failed to state how the applicant has not satisfied the criterion set out in s.36(2)(a) of the Act.
(8)The Tribunal’s decision on its face “goes to show that the applicant has not been given a fair chance” and that “the principles of natural justice has (sic) been violated”.
(9)The applicant relies upon the grounds identified in the original application which are:
a)the applicant took an unduly stringent approach to questions of credibility;
b)the Tribunal acted upon unsubstantiated assumptions;
c)the Tribunal failed to take into consideration the US Department of State 2003 Country Report on Human Rights and Labour, India, section 2C;
d)the Tribunal failed to give adequate weight to the applicants’ assertions that they would be killed if they went back to India because of their ethnicity and background because they are a minority in that country;
e)the applicants submitted that they had a genuine fear for their physical safety;
f)the Tribunal should have given greater weight to the Amnesty International Annual Report on India 1999-2003.
Upon the hearing of the application before the Court the applicant appeared in person at the proceeding assisted by an interpreter. He did not provide any further substantiation of the matters particularised in the application. When called upon at the hearing he sought only to make submissions concerning matters going to the merits of the Tribunal’s determination. He had no further submissions to make concerning the alleged errors of law.
The first respondent’s submissions are largely contained in its’ counsel’s written outline of 29 November 2006.
The essence of the first respondent’s submissions were that the Tribunal’s findings were open for the reasons given by it. It contended that the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. It further contended that even had there been a wrong finding of fact that such a wrong finding would not of itself constitute an error of law, let alone a jurisdictional error on the part of the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510 at 137.
I accept those submissions as being legally correct.
Concerning the nine grounds raised by the applicant in the amended application, the first respondent submitted:

Ground 1

Ground 1 concerned the first applicant’s assertion that he met the “refugee” definition. The first respondent submitted that what the first applicant sought to do was to engage upon a merits review of the Tribunal’s determination in respect of that matter.
I agree with the first respondent’s submissions in respect of this matter. It is clear from the Tribunal’s decision, particularly in its reasons and findings, commencing at page 10 proceeding to page 12, that the Tribunal considered the factual background in respect of the first applicant’s circumstances before determining that he did not suffer a Convention related harm in India and accordingly was not, by inference, a person who would fulfil the criterion for definition of a “refugee” under the Refugees Convention. In my view, the first ground must fail.

Grounds 2-6

Concerning grounds 2-6, the first respondent submits that the applicant’s complaint concerns the use by the Tribunal of country information. The first respondent submits that the choice and assessment of such information is a factual matter for the Tribunal: see NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13].
I accept the first respondent’s submissions on this matter as accurately reflecting the law. The matter was a matter open to be considered by the Tribunal in the manner in which it did and the information was information properly available to the Tribunal for its consideration.

As I have indicated above, whilst the Tribunal chose to send a s.424A letter to the applicants in respect of some country information it was under no obligation to do so. The fact that it chose to refer to some country information but not other information did not constitute an irregularity because s.424A(3) relieved the Tribunal of any obligation to give notice in terms of s424A(1) in respect of country information. The fact that the Tribunal could have regard to other country information would, in any event, have been patent to the applicants from the Delegate’s decision. Insofar as it did refer to “country information” it was apparent from the Tribunal’s decision that consistent with principles of procedural fairness it afforded the applicants an opportunity to comment upon that “country information” the Tribunal considered relevant: NAHI v Minister for Immigration (supra) at [19]. In my view, the Tribunal did not err in its use of the country information and the grounds of appeal 2-6 must fail.

Ground 7

In response to ground 7 the first respondent submits that contrary to the assertion made by the applicant the Tribunal did give reasons as required by s.430 of the Act. Section 430 of the Act particularised the Tribunal’s requirement to record its decisions. Relevantly, it provides:
430(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)     sets out the decision of the Tribunal on the review; and
(b)     sets out the reasons for the decision; and
(c)     sets out the findings on any material questions of fact; and
(d)     refers to the evidence or any other material on which the findings of fact were based.
It is plain from a review of the Tribunal’s decision that it has fulfilled the requirements of s.430(1) in terms of form. Section 36 itself provides:
(1)There is a class of visas to be known as protection visas.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
…

It is clear from an examination of the reasons contained in the Tribunal’s decision that the Tribunal concluded that the first applicant did not satisfy the Tribunal that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Further, it is clear that that conclusion was reached by reason of its rejection of the first applicant’s evidence concerning the matters asserted in support of the various criterion relied upon by the first applicant to demonstrate an entitlement to protection.
I am satisfied that the Tribunal has properly recorded its decision and reasons as required by s.430 of the Act in respect of the applicants’ entitlement under s.36 and that ground 7 should fail.

Ground 8

Concerning ground 8, the first respondent submits that the ground is devoid of all particulars such as to render the complaint meaningless. Further, the first respondent submits that in any event s.422B applies.
I accept the first respondent’s submission that the ground is so broad and ill particularised as to render it meaningless. It is apparent from a review of the court book that the applicant was afforded procedural fairness and that there has been no denial of natural justice. I further note that, in any event, the Tribunal’s conduct was consistent with s.422B, and the review has been conducted in accordance with Part 7, Division 4 of the Migration Act.

Ground 9

Concerning ground 9, the first respondent submits that ground 9 merely raises factual issues which were initially identified in the original application. Insofar as factual issues are raised, the first respondent submits that those matters are in the nature of merits review and that, for reasons it earlier submitted, should not be entertained.
I accept the first respondent’s submissions in that regard. It is apparent from a review of grounds 1-6 of the original application (noted as grounds 9(a) to (f) above simply seek to re-agitate factual matters.

Conclusion

I consider the Tribunal conducted its hearing in a manner consistent with its obligations under the Migration Act. The findings made by the Tribunal were open to it on the material before it and the orders made were within its powers. I do not consider the applicant have demonstrated any error in procedure or the decision which would enliven any rights for review.
I dismiss the application with costs, which are fixed in the sum of $5,000.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:

Date: 8 December 2006