SZGZQ v Minister for Immigration
[2006] FMCA 1203
•17 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1203 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a homosexual in India – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425A Migration Legislation Amendment Act (No 1) 1998 |
| Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 SJSB v Minister for Immigration [2004] FCAFC 225 SZEEU v Minister for Immigration [2006] FCAFC 2 |
| Applicant: | SZGZQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2249 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 17 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2249 of 2005
| SZGZQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 10 February 2004. The RRT affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is from India. The background to his protection visa claims and the RRT decision on them is set out in the Minister’s written submissions. I adopt as background for the purposes of this judgment paragraphs 1 to 4 from those submissions, subject to one correction:
The applicant is from India and arrived in Australia on 18 May 2003 (court book, pages 11-12).
On 18 June 2003, the applicant lodged an application for a protection (Class XA) visa (“PV”) (court book, pages 1-29), claiming to fear persecution in India by reason of his homosexuality. On 1 August 2003, a delegate of the first respondent refused the application (court book, pages 35-40).
On 18 August 2003, the applicant lodged an application with the second respondent (“RRT”) (court book, pages 41-44). The RRT invited the applicant to attend a hearing on 27 January 2004 (court book, pages 47-48), but the applicant’s migration agent wrote stating that the applicant did not wish to attend a hearing and specifically asked that there be a “decision on the papers” based on the information already held by the RRT (court book, pages 49-50).
The RRT proceeded to review the matter without a hearing, as requested. On 10 February 2004, the RRT handed down and sent to the applicant a decision affirming the decision of the delegate to refuse the PV (court book, pages 54-60).
The applicant relies upon his judicial review application filed on 19 August 2005. That sets out numerous grounds of review in general terms. Those grounds are adequately summarised in the Minister’s written submissions in paragraph 5. I agree with and adopt paragraph 5 of the Minister’s submissions:
The applicant lodged his application in the Federal Magistrates Court on 19 August 2005. The grounds are largely generic in terms, but to the extent that they are understood, they may be summarised as follows:
a)grounds (a), (b), (c), (d), (e), (h), (i) and (k) - these are not grounds but rather general statements;
b)ground (f): the claims were “rejected without my credible witness”;
c)ground (g): the RRT failed to “address my risk of harm in India at the time of the decision”;
d)ground (j): the RRT failed to consider that persecution was also religiously motivated by reason of the applicant’s affiliation with a homosexual group;
e)ground (l): this ground contains several particulars, claiming that the RRT failed to “investigate” the applicant’s situation in India and ignored relevant material, including persecution that the applicant has experienced and will experience if returned to India;
f)closing comment: this asserts that there has been a failure to accord procedural fairness, but is not cited as a separate ground of review.
The application is supported by an affidavit made by the applicant on 19 August 2005. I accepted the first two paragraphs of that affidavit as evidence. The balance I accepted as submissions. The submissions traverse essentially the same grounds as are set out in the application. I also have before me as evidence the court book filed on 12 October 2005.
The RRT decision, which appears from page 54 of the court book, is a simple one. The presiding member records on page 57 of the court book that on 5 December 2003 the RRT wrote to the applicant advising that it had considered all of the material before it relating to his application but was unable to make a favourable decision on that information alone. The RRT invited the applicant to give oral evidence and present arguments at a hearing. On 14 January 2003 the applicant advised the RRT in writing that he did not wish to give oral evidence and consented to it proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.
The review application was therefore determined on the evidence available to the RRT which the RRT had already informed the applicant was insufficient to support a favourable decision. Unsurprisingly, the presiding member found that there was insufficient material to support the protection visa claims and he concluded that he could not be satisfied on the available information that the applicant was at risk of persecution in India on the basis claimed. The presiding member concluded on page 59 of the court book that in the absence of further information from the applicant he was not satisfied that the applicant had a well-founded fear of persecution in India for reasons of membership of a particular social group, that group being homosexuals in India, or for any other Convention reason.
I see no basis whatsoever for the asserted jurisdictional errors set out in the application and the applicant’s submissions. Although not apparent on the face of the application, the Minister’s submissions also deal with the issue of whether there was any breach of s.424A of the Migration Act 1958 (Cth). On that issue, I agree with paragraphs 10 through to 15 of the Minister’s submissions and adopt them for the purposes of this judgment:
The RRT made its decision on 10 February 2004, so s.424A (which applies to all decisions of the RRT made after 1 June 1999 - see Migration Legislation Amendment Act(No 1) 1998 No 113, Schedule 3, Part 2)) applies to this application.
The applicant provided a short statement to the first respondent in support of his PV, which broadly states that he has fears of discrimination and attacks if he remained in India, on the basis that he is homosexual (court book, pages 26-27). The applicant provided nothing further to either the first respondent or the RRT in support of his claims to fear persecution.
The applicant was appropriately offered an opportunity to attend a hearing, this invitation complying with s.425A and allowing more than the notice period prescribed under regulation 4.35D (court book, pages 47-48). He was informed of the consequences of a failure to appear, and told that the RRT was “unable to make a decision in your favour on this information alone”. Knowing this, the applicant still specifically declined to attend the hearing (court book, pages 49-50).
In its decision, the RRT does not expressly rely on any of the claims put by the applicant in his PVA.
The RRT concludes that the applicant’s claims were so “lacking in detail” that the RRT was simply unable to establish all the relevant facts (court book, page 58). The RRT had questions which remained “unanswered”. It concluded that it had insufficient information with which to be satisfied that the applicant’s claims could be made out. As was explained by Ryan, Jacobson and Lander JJ in SJSB v Minister for Immigration [2004] FCAFC 225 at [15], s.65(1) of the Act:
…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.
That decision was followed in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 (see [17]). This case clearly falls within the perameters of those Full Court decision and is not affected by an error of the type identified in SZEEU v Minister for Immigration [2006] FCAFC 2.
I find that the decision of the RRT is free from any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order fixed in the sum of $4,200. I note that four court appearances have been required in this matter. The Minister has also prepared a court book and written submissions. I am satisfied that $4,200 is a fair and reasonable party party assessment. The applicant is concerned about his capacity to pay but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application which I fix in the sum of $4,200.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 August 2006
3
2