SZHTL v Minister for Immigration - [2006] FMCA 340

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 340

MIGRATION — Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicants are citizens of India but second applicant is a permanent resident of the Philippines – whether s.36(3) of the Migration Act 1958 (Cth) applies.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.36(3)

First Applicant:

SZHTL

Second Applicant:

SZHTM

Third Applicant:

SZHTN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 3581 of 2005

Delivered on:

1 March 2006

Delivered at:

Sydney

Hearing date:

1 March 2006

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Mr Silva

Solicitors for the Applicant:

Silva Solicitors

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3581 of 2005

SZHTL

First Applicant

SZHTM

Second Applicant

SZHTN

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal that was made on 21^st October and handed down on 9^th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the Applicants.
The Applicants are wife, husband and child and the wife is the Primary Applicant. They are citizens of India but they have been residing in the Philippines for a number of years. The Third Applicant is still an infant in that she is under the age of 18 and played no part in the proceedings, either before the Refugee Review Tribunal or before the Federal Magistrates Court.
The parents are Sikhs from the Punjab. They were married in 2002. The Second Applicant, the husband, has resided in the Philippines since 1992. He has the status of a permanent resident in that country, and as a result of his marriage to the First Applicant, the First Applicant was granted temporary resident status.
The parties attended a hearing before the Refugee Review Tribunal on 19^th October 2005. The First Applicant, the wife, gave oral evidence and the husband did not.
The proceedings got off to a somewhat shaky start in that the original application for a protection visa is brought by the wife on behalf of a claim of a fear of persecution in the Philippines. On two occasions in 2003 the First Applicant claimed that three men entered the parties’ home and stole money and other valuables. She also told the Tribunal of an incident whereby an Indian man was robbed, complained to the police but was later murdered by criminals.
The Applicants left the Philippines and travelled to Australia where they applied for protection visas. The First Applicant was the Primary Applicant; the husband and child relied on being a member of the First Applicant’s family. The visas were refused and the parties applied to the Refugee Review Tribunal on 17 May 2005 for review of that decision.
The difficulty with the original application for protection visas was that the Applicant wife sought a visa in respect of the two criminal events that had occurred in the Philippines. The migration agent who acted for the parties forwarded a memo to the Tribunal, which was attached to the application for review. In that memo in the first paragraph the agent refers to the two robberies separated by a month, and his speculation about what the Applicants thought. He then goes on to refer to incidents in the Punjab, which was recovering from years of violence, and matters relating to the First Applicant’s husband and members of the Sikh community in the Punjab in the years after 1984.
It is a most curious memo, based as it is on speculation by the migration agent, which would have been of very little value at all to the Refugee Review Tribunal and seems to be unclear as to whether the Applicants were in fact referring to persecution in the Philippines or in India. The fact is that, as the Tribunal Member made clear to the parties, being the victim of crime in the Philippines is not a basis for the grant of a protection visa.
What then appears to have happened is that the Tribunal, quite correctly, considered the claim of the Applicants against their country of nationality, namely India. The matter was then run before the Refugee Review Tribunal on a somewhat back to front status as the claim of persecution in India related to the Second Applicant’s well founded fear of persecution, which was alleged, in respect of a fear of torture being inflicted by the police as a result of an implication, said to be false, that the Applicant husband had been involved in crime in India, the crime being the murder of two of his schoolmates.
Whilst the wife was the Primary Applicant before the Tribunal and the husband and child were making their claims as members of the wife’s family, the case was run on the basis that the person with the well founded fear of persecution in India was the Applicant’s husband. That being the case, it seems extraordinary that it was the wife who gave evidence and the husband who did not. It can really only be traced back to the original claim relating to an alleged fear of persecution in the Philippines arising out of crime.
The Tribunal was not satisfied that there were valid reasons why the Applicant wife and her husband would face persecution in India. The Tribunal considered the country information relating to Sikhs in the Punjab which was appropriate. If the claim before the Tribunal related to the Applicant husband’s fear of persecution in India, which he had left in 1992, then the most obvious way of handling that matter would be for him to give evidence of matters relating to him, rather than the wife giving evidence of matters that she could only know by hearsay.
The Tribunal, as I said, considered the application and assessed the claims against India as the country of nationality. The Applicants in an Amended Application provide two grounds. First, that the Tribunal made jurisdictional error as it failed to make a finding as to whether the Applicant had taken all possible steps to avail herself of the right to enter India after leaving the Philippines, sub-s.36(3) of the Migration Act 1958 (Cth). Ground two says that the Tribunal made jurisdictional error as it failed to take into consideration issues that are mandatory by their scope in making the finding that the Applicants are not refugees.
Dealing with the sub-s.36(3) issue first, it appears that the Applicants have been led into error by what is either a typing error in the Tribunal decision, or a misconception of the effect of sub-s.36(3) by the Tribunal Member. At page 160 of the Court Book, the Tribunal said:
The Tribunal has considered the Applicant’s claims in relation to India which she raised during her interview with the delegate and her hearing to determine whether she has a well founded fear of persecution for a Convention reason which would render sub-s.36(3) inapplicable to India.
This, as I said, is either a typing error or a misconception. Sub-section 3 says:
Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia including countries of which the non-citizen is a national.
The section goes on to say in sub-section 4:
However, if the non citizen has a well founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, sub-s.3 does not apply in relation to that country.
It is clear that the legislation refers to a consideration of a person’s refugee status in the light of whether that person has a right to reside in a third country, that being a country other than their country of nationality or Australia. It would seem to be extraordinary for a Tribunal to apply sub-section 3 in such a way as to consider whether a party should take all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently, their country of nationality if that country is the country from which they claim to be a refugee. In other words, the country where they claim circumstances exist which gave rise to their having a well founded fear of persecution for a Convention reason.
In this case if the Applicants claimed a well founded fear of persecution in respect of their country of nationality, namely India, the appropriate application of sub-s.36(3) was to consider whether the Applicants had taken all possible steps to avail themselves of a right to enter and reside in the Philippines where the Second Applicant husband is a permanent resident, and the First Applicant wife had a temporary visa. The confusion perhaps arose from the original application by the Applicant seeking refugee status on the basis of criminal events that had occurred in the Philippines.
In any event, even if the Tribunal was mistaken in its understanding of sub-s.36(3), it was still necessary to consider whether the Applicants have a well founded fear of being persecuted in India for the purposes of sub-s.4 to which I have previously referred. It was put to me by Mr Silver for the Applicants that the Applicant husband is a member of a particular social group, namely persons who are falsely implicated in a crime, because the husband claims a fear that he would be tortured by the police if he were to return to India, even after an absence of ten years or more, as a result of the police interest in him arising out of the death of two of his schoolmates.
Unless there were to be shown some Convention reason for the Applicant husband being falsely implicated in the crime, the situation described by the First Applicant relating to her husband will not give rise to a well founded fear of persecution for a Convention reason. It is well established that people who are reluctant to return to their country of nationality because of an interest in them by the criminal justice authorities, do not come under the scope of the Refugees Convention.
The second ground relates to whether the Tribunal made a jurisdictional error by failing to take into consideration issues that are mandatory by their scope in making the finding that the Applicants are not refugees. The particulars given include this:
(a)The Tribunal failed to take into consideration the simple operation of the criminal law. Had the Tribunal considered this issue it would have realised that there is no factual or legal basis for the Tribunal to make the above finding. “The Tribunal does not accept the applicant’s husband would be of interest to the police in 2002, ten years after he left the country because if someone is wanted in relation to complicity in a murder there is no information or law in India which says that that person cannot be prosecuted after ten years.”
The submission relating to the law in India is quite probably correct, but it is well established that matters relating to the operation of the laws of another country must be proved, as any other factual matters are proved, in this Court, i.e. by affidavit or production of other appropriate documentary material such as a copy of the Statute itself. The finding by the Tribunal of the Tribunal’s refusing to accept that the husband would be of interest to the police is to my mind a factual issue and within the scope of matters which are to be decided by the administrative decision maker.
The finding may be wrong. That does not, however, lead to a conclusion that a jurisdictional error has occurred as long as there is evidence upon which the Tribunal could have made that finding. The evidence comes from the Applicant’s evidence herself. She was the one who put this matter to the Tribunal and the Tribunal, when it came down to it, did not accept the Applicant’s evidence.
That ground of review fails, as does the ground of review under

sub-s.36(3). There is no jurisdictional error. Whilst I have expressed concerns about the way the decision was expressed in respect to

sub-s.36(3), I am not of the view that it amounts to a jurisdictional error because the factual issues considered by the Tribunal relating to a well founded fear of persecution in India were in fact considered and it was necessary to find that, whatever view one takes of sub-s.36(3).
As there is no reviewable error, the application will be dismissed. I am of the view that this is a matter where I think that costs would follow the event.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:Virginia Lee

Date: 9 March 2006